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.

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liberal hater

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!

R

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.

Elizabeth

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.

R

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.

Quidpro

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.

Paladin

Smelled like sour ass & tuna in there.

Marie

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.

Marie

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.

Marie

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.

danny

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)!

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