California's Prop 8 Update

Yesterday, the ACLU, along with Lambda Legal and the National Center for Lesbian Rights, filed a lawsuit in the California Supreme Court, urging the court to invalidate Prop. 8. (You legal wonks can check out the complaint here.)

We also issued a press release yesterday reminding everyone that California Attorney General Jerry Brown has stated that if Prop. 8 does pass, the state will still honor the marriages of same-sex couples wed between June 16, 2008 and passage of Prop. 8.

More news to come on this, for sure.

To learn more about Prop. 8 and tools for advancing LGBT equality in your community, visit Get Busy, Get Equal!

View comments (36)
Read the Terms of Use

Liberal hater

Liberals do not respect democracy.
Liberal activist judges is all left-wing groups like ACLU and PFAW want and support.

They cannot do things the democratic way, which means judges stay out areas where they have no business and let the people decide.

Newsflash to liberal groups fighting Prop 8. You will lose. If the state Supreme Court gets involved and overturns the will of the people they will face an inevitable recall. If they do overturn it will go to the U.S. Supreme Court.

5-4 is how they will rule.
Scalia, Thomas, Alito, Roberts, Kennedy and maybe even Breyer to uphold Prop 8


What about the AZ constitutional amendment that passed? Where are the lawsuits?


This is disgusting!!! You liberals make me sick - so much for voting, freedom and democracy. The people have voted and the outcome is clear...marriage is ONLY for one man and one woman, get it? Gays already have civil unions and you're lucky to have that!

John in AZ

Kirk, What lawsuits. The people have spoken and that is the law.

Those in CA that refuse to respect the rule of law will get a wake up call soon.

The Illegal Gay Licences issued since May are VOID.
"only 1 man 1 woman is valid"!!!


Has anyone thought about a lawsuit to remove the word 'marriage' from the constitution? The majority of arguments I've heard are from people of a religious background claiming that God defines marriage to be between a man and a woman. And if this is the case, isn't it unconstitutional to use the word in an amendment?

Congress shall make no law respecting an establishment of religion...

Chris Kiely

There is an important second line of attack on Proposition 8 that the ACLU should advance: The "Republican Form of Government" guarantee clause in the US Constitution.

The California Supreme Court is, oddly, one of the leading proponents of this little used provision. In Agua Caliente Band v. Superior Court (2007?) the Court held that the state's interest in regulating its electoral process implicated this section, thereby trumping the tribe's sovereign imunity, allowing the FPPC to enforce donation regulations against the tribe.

The clause was designed to ensure that states had representative forms of government. It has been little used, as generally, there has been no real remedy available. Courts have generally found that the controversies that arise are too political to be amenable to court based solutions. Not always though.

So how do I think it applies here? Well, first, I don't think it will give the "grand slam" win. It wouldn't support an argument that the court was right and the voters were wrong on the equal protection issue. That will have to be won or lost on other grounds, and frankly, I think the "revision" argument is weak. For better or worse, California has let initiatives get pretty radical; this one (despite the reek of bigotry) doesn't seem to make structural changes on a different order than prior initiatives.

The guarantee clause does, however, provide an important fallback position. Proposition 8 does more than turn back the clock on the Supreme Court's decision. It also forecloses the legislature from doing anything on the issue ever.

Civil marriage has historically been an issue of overriding legislative concern. Think about it. Family Law is the regulation of the most private aspects of people's lives. In any other area of the law, it would seem almost absurd to have the types of arcane and almost nonsensical regualtions that one finds in family law. The most sweeping generalizations are allowed; rules that make sense only in a portion of cases apply to every marriage. How can a law regulating two 25 year olds with a new born be applied to a couple in their 60's?

Also, look at the hodgepodge of different laws in different states, and over different eras, all regulating one area of life where, ideally, the government should stay out as much as possible.

The point of this digression is to pose this question? Why has this whole process been allowed, and not stricken down decades ago? Because it has been historically recognized that the costs and benefits of the social (not civil) institution of marriage are so important, for good or for ill, not just for individuals but for society as a whole, that it is peculiarly within the purview of State Legislatures to try to make sense of it, no matter how poor the results may be, and that the ability to change and modify rules, (not just according to "social mores", but in response to practical changes in the way people live their lives) is essential.

Thus, by handcuffing the legislature on this issue, the electorate has usurped the legislative function to an unacceptable amount.

As i said earlier, this won't win the moral issue. This argument would have no value if the ballot meaure had simply overturned the Court decision and left it at that.

But by handcuffing the Legislature in an area where it has traditionally excercised almost unfettered discretion, Prop 8 went too far. This argument will have particualr strength if the legislature itself asserts it.

It will also give the courts a more technical way to strike down parts of Prop 8, allowing the state to move ahead by normal legislation, without so obviously flying in the face of the voters.

never a hater

@ Liberal hater
Well, it's official it never was about saving the children or marriage instead (surprise!) it was always about anger and hate. The unpublished 11 commandment: "Thou shall hate all homos" -- Jesus Christ in heaven I'm sure is please to read your screed and bless you (I don’t think so).

Heart of God

God made man and woman in His image. Together, as a male and as a female, we complete that image. Like the balance of the yin yang, we need both a male and female to demonstrate the balance in nature. If you have homosexual desires you of course may not want to hear this, but truth does not change in our ears. It is a hard truth for our culture but a compassionate truth anyway. It is in the heart of God to lift our hearts to Him and seek His truth, not our own preference.

Blessings and peace,

From the Heart of Christ

Doug in Virginia

Where are the lawsuits against the religious groups that spent millions and get away with political activity? Where in the US Constitution or Bill of Rights, the allowance of right wing religionists the right to force their dogma down the throats of people who believe otherwise. People didn't have "marriage" sacraments before religionists who want to control peoples' lives invented them. If you do or don't want to marry, go right ahead. I, however, would prefer that you keep your closed-minded dogma to yourself and stay out of my choices. Wars are caused by religionists trying to usurp my rights of choice in marriage partners and religion or no religion. Too bad christianity isn't more Christ-like and less prone to forcing free Americans into Nazi-like and/or Communist like conformity.

Constitution Lover

Newsflash to "Liberal hater:" There's no such thing as a recall vote on the Supreme Court in California.

One justice is up for "retention vote" next year then it's another 5 years until just two more come up.

PLUS, six out of seven on the current court were appointed by Republican Governors. I doubt they would describe themselves as "liberal haters," but they certainly did what was right - by the State's Constitution - when they overturned the last vote for institutionalized hatred.

As for the U.S. Supreme Court ruling on a matter governed by a State Constitution and not in conflict with the U.S. Constitution ... good luck. (Try reading the U.S. Constitution and you may see why.)


Stay Informed