Thursday, November 06, 2008

The Prop 8 challenges are beginning

I knew this was coming:

The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group – lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.


"If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us," said Jenny Pizer, a staff attorney with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."

"A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution," added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

The groups filed the lawsuit today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.

The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.

"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," said Shannon Minter, Legal Director of NCLR. "It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Proposition 8 may pass, the courts will have to weigh in and we believe they will agree that Proposition 8 should never have been on the ballot in the first place."

Winning this challenge to Prop 8 won't take a way the sting that about 52% of Californians votes to take away marriage rights for same-sex couples. But it will allow those same sex couples to get married. And protect the marriages that already exist.

As a married person myself, I just can't imagine a bunch of voters being able to legally annul my marriage. That's hideous. Of course, I don't think anyone knows exactly what Prop 8 does to marriages that already exist in California. Are the automatically converted to civil unions? Are they destroyed completely? Will they be "grandfathered" in? Do they have to divorce? The legal consequences could be very tangled.


Blogger thisismynickname said...

There is now way this should stand up under the first amendment.

Presbyterian and Methodist churches have performed gay marriages in the past.

Prop 8 forces those churches, by law, to use the same definition of marriage as the Mormon, Catholic, and Evangelical churches.

This law shows preference to some churches and imposes restrictions on others.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...", sound familiar?

9:01 PM, November 07, 2008  

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