Mar 5th, 2009
Posted by Paul Cates, LGBT Project at 4:17pm	LGBT Rights

Court Hears Oral Arguments in Prop. 8 Challenge

Arguments just ended in our legal challenge to Prop. 8. At issue in the case is whether the ballot initiative process can be used to take away a fundamental right only for one group of Californians based on a trait – in this case sexual orientation – that has no relevance to the group’s ability to participate in or contribute to society.

We filed the challenge with National Center for Lesbian Rights (NCLR) and Lambda Legal on November 5, after Prop. 8 was approved by just 52 percent of the voters on Election Day. In court today, the groups argued that it was improper for the proponents of Prop. 8 to use the ballot initiative process to strip same-sex couples of the fundamental right to marry. The groups contend that changes to the Constitution that alter its core requirement of equal protection by selectively depriving minorities of fundamental constitutional rights cannot be accomplished through a simple majority vote. Such major changes of core structural principles are revisions to the Constitution that can only be put on the ballot by a two-thirds vote of both houses of the legislature.

A constitutional democracy is built on two basic ideas: The people are in charge, but there are limits on the majority’s power over minorities. The people get to vote on most things, but we don’t put the fundamental rights of a disfavored minority up for a vote. But that’s exactly what happened with the passage of Prop. 8.

This case is not just about marriage or gay people. If a simple majority of the voters can take this core right away from gay people, it can take any right away from any other group as well (Kenneth Starr – who argued for the supporters of Prop 8 – acknowledged this in court today). If Prop. 8 is upheld, then Californians could, for example, vote to take religious freedom away from Muslims, or free speech rights away from women, or the right to vote away from Chinese-Americans. This case is important for every Californian: it’s about whether the limits we’ve set on the power of the majority have meaning.

The California courts have a solemn responsibility to enforce the state constitution to protect the rights of all people, regardless of popular opinion. We hope the court will recognize that it is not just the rights of lesbian and gay people, but the rights of all Californians that it must protect by striking down Proposition 8.

The court is expected to rule within 90 days. Stay tuned for further updates.

Permalink |	LGBT Rights

1. liberal hater Says:
   Mar 5th, 2009 at 5:40pm

   News Flash. You guys have lost once and probably have lost again. My sense along with every article written on today's hearing leads me to believe without a doubt that Prop 8 will be UPHELD.

   The vote will probably be 4 to 3 or maybe even 5 to 2 to uphold Prop 8!

2. R Says:
   Mar 5th, 2009 at 6:26pm

   Your analysis of the legal implication is exactly right. If the people (from whom governing and lawmaking power ultimately flows) explicitly constitutionalize discrimination, such discrimination is legal, valid and enforceable. California, as I'm sure you're aware, is probably the most populist state in the union and the right of the people to amend the constitution is unparalleled, for better or worse. To supplant the will of the people of California with the "wisdom" of 4 judges runs contrary to California's history and jurisprudence.

   Also, your hypothetical parade of horribles would clearly be unconstitutional under the federal constitution even if Californians wrote such discrimination into the California constitution. Unfortunately for you, defining marriage to be legal only as between a man and a woman would likely be upheld by the US Supreme Court--this explains why gay rights advocates haven't brought any action in federal court.

3. Elizabeth Says:
   Mar 5th, 2009 at 8:54pm

   Not true. If a simple majority of the voters can take this core right away from gay people, it can take any right away from any other group as well (Kenneth Starr – who argued for the supporters of Prop 8 – acknowledged this in court today). If Prop. 8 is upheld, then Californians could, for example, vote to take religious freedom away from Muslims, or free speech rights away from women, or the right to vote away from Chinese-Americans.

   These rights are all protected in the constitution of the United States of America.

4. R Says:
   Mar 6th, 2009 at 5:00pm

   Elizabeth--you make my point--perhaps it didn't come across clearly the first time. Under California law, a bare majority COULD amend the California constitution to discriminate against Muslims. The fact is, as the Chief Justice intimated yesterday, that the California constitution is probably too easily amended.

   My other point is that the author's worry is smoke and mirrors or paranoia because the US Supreme Court would certainly overturn an amendment to the California constitution explicitly discriminating against Muslims on the grounds that it violates the US constitution. It likely would not overturn Proposition 8 under such a theory--which is why gay rights advocates haven't brought a challenge in federal court.

5. Quidpro Says:
   Mar 6th, 2009 at 6:31pm

   Both Mr. Cates' post and Elizabeth's comment presume that which the voters of California rejected. By passing Proposition 8 the voters determined there is no fundamental right to same-sex "marriage".

   On one point, Mr Cates is correct. The California Courts "have a solemn responsibility to enforce the state constitution". That constitution defines marriage as the union between one man and one woman. The Courts are not above the constitution.

6. Paladin Says:
   Mar 7th, 2009 at 8:26am

   Smelled like sour ass & tuna in there.

7. Marie Says:
   Mar 7th, 2009 at 1:12pm

   Elizabeth,

   Wasn't it a simple majority that elected Barack Obama? Should we take that to court? What if the same majority ruled to criminilize Christianity? Would you be as outraged as you sound about the possibility of Muslims losing their rights? I doubt it. The utter hypocrisy of the left is just too much these days. You make me ill and want to fight like crazy against all of you.

8. Marie Says:
   Mar 7th, 2009 at 1:19pm

   WHERE IS THE ACLU'S SUPPORT FOR JOE THE PLUMBER. HIS RIGHTS WERE VIOLATED WORSE THAN ANY HOMOSEXUAL THAT DOESN'T GET TO "MARRY" IN CALIFORNIA, OR WORSE THAN SOME CHILD THAT HAD TO HEAR THE WORD "JESUS". WHY DON'T YOU PUT YOUR MONEY WHERE YOUR MOUTH IS? OR, ARE YOU REALLY ONLY ABOUT PROTECTING THE RIGHTS OF THOSE WHO SHARE YOUR VIEWS.

9. Marie Says:
   Mar 7th, 2009 at 1:33pm

   By the way ACLU,

   We all know that simply standing up and saying it was wrong for Ohio state officials to look up personal information on Joe the Plumber, is really easy to do. We're all waiting for the ACLU to put their resources (money) behind this guy. Talk is cheap.

10. danny Says:
    Mar 8th, 2009 at 12:04am

    hey quidpro, i think you have a brain in your head. can't say the same for elizabeth. the right to marry someone of the same sex is NOT guaranteed in the US constitution, but the right to free religious worship is. if you guys really want to support gay marriage, take it up with the legislature, but don't use our courts, which are supposed to be neutral, to uphold your personal beliefs. that's just selfish (and unAmerican)!

11. Paen Says:
    Mar 9th, 2009 at 4:24pm

    What is brainless is the recital of the same bigoted propaganda as all the other right wing sheep.

12. Tyson Says:
    Mar 9th, 2009 at 11:56pm

    Friends, enemies and everyone else. The hate that is being spewed out on this page is a step in the wrong direction. The great thing about civil liberties is that we have the right to disagree as civil beings. As respectable people, as I’m sure many of you are, ask yourself what really are you accomplishing? Is it the need to be right? Hitler had that need, so did Osama bin Laden, and Stalin. Historical figures that have made the biggest lasting difference in our societies, spoke messages of love, tolerance, acceptance, charity and brother/sisterhood. It is ok for you to believe that marriage is between a man and a women. Furthermore it is your right, so to is it your right to believe in which ever God that suits you. Freedom is something we must all fight for, no matter what you believe. As human beings we should not be so worried about who loves who, rather we should be concerned greatly about hate. Hate is the beginning to the end of all civilizations. It is the start of all wars, it is the reason Christ, Martin Luther King, and Harvey Milk were killed, as well as many others who were never given the chance to change the world. The reality is we are in this together. If your civil or human liberties are taken away, would you fight to have them restored? As consenting adults, we all get the right to make choices on how we live our lives. Living in a “free” society should put us on a level playing field of equal rights. We’ve come so far, why go backwards, why hate? I hope that people on both sides of this issue will attempt to agree to disagree. When you choose to express your anger and prejudice, you are making a clear choice to spread evil and hatred. For once consider the idea that we are in this together, and with courage, love and hope we can live side by side with our differences and freedoms in tact. Or don’t, then you can pat yourself on the back when you die for all the hate you spread. For being right, and most of all for standing up for intolerance, imprisonment, shame, and indifference to your fellow man and woman. It’s your choice…..

13. walter Says:
    Apr 2nd, 2009 at 5:17pm

    The challenge fails in the first paragraph."Gay" is not a trait. It is a defined behavior. Attempts to state it is something innate/immutable have failed. This is redefining marriage to accomodate behaviors. If you do that, then anyone for any reason can marry.

    People forget that heterosexual couples are turned down for marriage every day in all 50 states for a variety of reasons.

    If "gay" was a trait, you can bet the evidence of that, would be in the ACLU brief. Marriage is not a civil right, it is a privilege, the people of California had every right to define marriage.

    You can bet if proposition8 had gone down in defeat, the same sex marriage crowd would be enthusiastically supporting the will of the people.

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