Lawsuit Challenging Prop 8 in California Is Filed

[tjwash]

Source: NBC News San Diego

The suit was filed today in the California Supreme Court on behalf of Equality California and six same-sex couples who did not marry before Tuesday’s election but would like to be able to marry now. California Attorney General Jerry Brown said that the marriages of the estimated 18,000 same-sex couples who married between June 16, 2008 and the passage of the proposition are still valid and must continue to be honored by the state.

Read more: http://www.nbcsandiego.com/news/local/Lawsuit_Challenging_Proposition_8_Filed.html

[Zenlitened]

1. Excellent news. K&R. - n/t

[NorthCarolina]

2. The AFA or some other conservative group will no doubt challenge the existing marriages

since allowing them to continue would create a condition in which "some gays can be married" and "the remaining gays cannot be married". Supporters of the amendment know that this duality would create problems under a constitutional form of government based on equal rights for all citizens and would likely jeopardize the legal standing of their newly passed amendment. Expect a lawsuit shortly that seeks to retroactively invalidate all gay marriages performed in CA.

[krabigirl]

8. And I'll join the fight against that stupid group.

[Rockholm]

16. And they will lose (The AFA)

[Ian David]

3. Do we need to donate money to this, or is this being fought with taxpayer dollars?

I sure hope California is being forced to pay for the fight against their own garbage they voted for.

[David__77]

5. Donations needed.

www.eqca.org

[David__77]

4. I am fairly confident that proposition 8 will not go into effect.

We will see.

[ksimons]

6. great article, thanks for posting

I thought the most important issues are the fact that apparently there are instructions on how and why the constitution can be amended by popular vote, and it sounds like undermining a basic premise of the constitution is not one of the things that can be undone by popular vote unless first submitted through state legislature for approval.

http://www.eqca.org/site/apps/nlnet/content2.aspx?c=kuLRJ9MRKrH&b=4061163&content_id={43A72A1B-BEAC-4756-84BF-1DA2414ABD80}¬oc=1

'This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.'

So given that the Supreme Court DID interpret the constitution to allow the right, for people to vote to amend it to strip the court of their interpretation of the constitutional right seems to be a similar, if not the identical argument.

[ksimons]

10. California Constitution Article 1, Sect 3

The section in bold is one of the keys:

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SEC. 3.

(2) A statute, court rule, or other authority, including those in
effect on the effective date of this subdivision, shall be broadly
construed if it furthers the people's right of access, and narrowly
construed if it limits the right of access. A statute, court rule,
or other authority adopted after the effective date of this
subdivision that limits the right of access shall be adopted with
findings demonstrating the interest protected by the limitation and
the need for protecting that interest.

...as prop 8 clearly limits some citizens' rights of access as guaranteed in the Constitution, more than a simple vote is required by the Constitution. As quoted, no such 'findings demonstrating interest' have been proven, and further, could only be accomplished if the process ran first through the legislature and then, and only then, was followed by popular vote.

The fact that the constitution has two distinct methods for amending and both include a popular vote says that there are two levels of distinction at which the constitution can be amended. Otherwise, you'd simply have the 'popular vote' method throughout.

[Rockholm]

17. The Legislature voted twice for marriage equality.

and the Arnold vetoed the bills. Right?

[ksimons]

22. I believe so

Significant is the second part of this -

The California Supreme Court voted 4 to 3 on May 15 that a state ban on same-sex marriage was unconstitutional. The ruling also elevated sexual orientation to the constitutional status of race and gender, an elevation that provides strong legal protection from discrimination

[DemFromMem]

11. And who can forget the anti-immigration Proposition 187

The courts knocked most of that out as well.

[Ms. Toad]

7. On first review of the complaint

I like it - it is a thing of beauty.

It pits the California constitution against itself using the differing requirements for an amendment (minor tweaks) v. the more stringent requirements for a revision (fundamentally altering the constitution). The latter would take time (always to our benefit), and at least 2/3 majority legislative action. (I just skimmed the details.) I will have to see if there is any possibility of borrowing that line of reasoning for the Ohio Amendment - although I suspect we don't have two sets of rules for amending our constitution.

It is also beautiful because it leaves the decision entirely in the hands of the California Supreme Court, which has already ruled favorably on this issue. No risk that it will get to the US Supreme Court and create bad law for the entire country.

[DaDeacon]

12. This is the basis of my friend of the court brief I started last night!

"It is also beautiful because it leaves the decision entirely in the hands of the California Supreme Court, which has already ruled favorably on this issue. No risk that it will get to the US Supreme Court and create bad law for the entire country."

The courts previous decision should not change and thus be upheld. Good eye!

[ksimons]

28. quick follow up

as you were writing something, throwing this under your post -

Would hope that someone goes after the fact that the proposition's title speaks of a VERB, not a noun - so that the right 'TO MARRY' is called out, but not the right to 'BE MARRIED', thus people who are already legally married should not have that right taken away - not by a long shot.

Further, the actual phrase in the voter's book says:

* Changes the California Constitution to eliminate the right of same-sex couples to marry in California
* Provides that only marriage between a man and a woman is valid or recognized in California

the term 'marriage' used in the second line with out an article, like 'a marriage' or 'the marriage' also moves the issue to an action - thus the act of marrying, not an existing state of being in-a-marriage. It is clearly the ACT OF GETTING MARRIED that is legally at issue by the wording of this, not the existence of a married couple.

The people who wrote their prop screwed themselves over and hopefully this and many other facts will make it impossible to enforce such a blatant act of 'the many' acting over 'the few' to remove existing rights.

-- also --

the constitution amendment procedure states:

(e) An initiative measure may not include or exclude any political
subdivision of the State from the application or effect of its
provisions based upon approval or disapproval of the initiative
measure, or based upon the casting of a specified percentage of votes
in favor of the measure, by the electors of that political
subdivision.

They were using the amendment to DO JUST THAT - exclude a section of the electorate from full exercise of the constitution itself (or, technically, to include only a portion of the electorate be affected by its provisions) - gay voters are definitely a political subdivision of the electorate, as evidenced by their participation and issue-oriented political groups - Log Cabin Republicans and Stonewall Democrats. Both political subdivisions.

Posting this in hopes it helps.

[orleans]

9. glad they are challenging it. n/t

[AsahinaKimi]

13. This is good news..

Gambare ne!! Do your best..

[happygoluckytoyou]

14. IN THE LONG RUN.... "they" lose... blacks and whites marry... jews and christians mix... ---> --->

you can slow the tide but not stop it... that is why the GOP sux...
LOOK AT THE VOTERS... WHITE is a minority now... we are so intermixed that THEY are f'd...
the purests... the ones who "talk to god"...
-----i watched the entire night last night BUT ONLY ON FOX NEWS... it is such a pleasure to watch them EAT THEIR OWN LIVERS OUT...

[Fearless]

15. Alright then, now we're talking!

[fascisthunter]

18. This Religiously Motivated Initiative is Unconstitutional

Separation of Church and State and we know the money came from churches....

[Joszef Pelikan]

19. Call to Boycott Mormon Companies

Since it looks like Prop 8 will pass, I think it is time to start a boycott of Mormon owned companies(since the Mormon church was the primary donor for this horrible prop). Anyone agree?

[fascisthunter]

20. I agree.... but this needs to be overturned while we boycott

[The Brethren]

21. My fully support to the lawsuit!! I hope they win.

Prop. 8, as well as the passage of yet another anti-gay marriage amendment - this time in Arizona are blatant discriminatory uses of law. They never have been allowed on the ballots. I doubt very much if the ballots stated instead stated that black, Hispanic, Asian, native American, etc. Americans were banned from marrying that they would be allowed on any ballot nationwide. And if for some bizarre reason they were, there would be a huge, nationwide outrage over it.

I'm exhilarated by the results last night for Obama and Biden as well for the Dems in general. But I'm also livid at what happened in both of these states. And while all this was going on a representative for the Hispanic community was in the media boasting how happy she was fro the Hispanic American because of the results and how "personal" this race was for them. Personal? As a gay American let me tell how personal it is to watch Propositions and state Amendments being used to legally and blatantly take away rights for gay Americans - such as in CA and to prevent rights such as in Arizona to be to marry.

And that's not just about straight voters who may think that because they're not gay, it doesn't affect them personally so why should give damn. That's about bigots of any race knowingly and deliberately using their power to vote to take away and prevent my rights and all other gay Americans. I'm sick of it!!!! And I'm sick of being told to be polite about it and things will get better. Things are not getting better.....they have become worse. I'm told history was made last night for many reasons including that for the first time in our history a half black and half white male became our President. Congratulations to Obama for that! But history was also made last night by Prop. 8 that appears to have passed - for allowing not only a ban preventing gay Americans to marry, but for taking one of the few states that had legally allowed it and choosing to rescind it. That was an outrage! I'm fed up with gay people treating as second class citizens.

I also want to give Rachel Maddow a big THANK YOU!!! for being the only television commentary - including on her MSN panel, who not only brought Prop.8 up during the returns and for who eloquently speaking up against it. Rachel is not only intelligent and cares, she has a spine.

[ksimons]

23. saw rachel speak - and she put it into words very nicely - hope that continues

Now that the presidency has been decided, hope her ability to cut through the buzz and cleanly use her rhetoric to make the point is put to good use.

[The Brethren]

25. Yes, she did an excellent job!!

But honestly, I was very disappointed with the rest of the panel on this issue, esp. Keith. I've always very much respected Keith, but he and all the other guys on the panel last night barely acknowledged what Rachel said about Prop. 8 and why it was wrong. And then right after that the guys tried to switch the subject as soon as possible. My partner and I were amazed. What, where they afraid they may actually have to talk about it? Or maybe it just wasn't important to them? I don't know.

[Piewhacket]

24. Good Article. here is another very good article(LA Times).

Gay rights backers file 3 lawsuits challenging Prop. 8
http://www.latimes.com/news/local/la-me-gaylegal6-2008nov06,0,220763.story

[Piewhacket]

26. "All animals are equal."

"All animals are equal, but some animals are more equal than others."
George Orwell (Animal Farm)

"The ultimate example of the pigs' systematic abuse of logic and language to control
their underlings, this final reduction of the Seven Commandments, which appears in
Chapter X, clothes utterly senseless content in a seemingly plausible linguistic form."
Spark Notes - http://www.sparknotes.com/lit/animalfarm/answers/quoteexp_4.html

The true problem with the California Constitution.

CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION
SEC. 3. The electors may amend the Constitution by initiative.

SEC. 4. A proposed amendment or revision shall be submitted to the
electors and if approved by a majority of votes thereon takes effect
the day after the election unless the measure provides otherwise. If
provisions of 2 or more measures approved at the same election
conflict, those of the measure receiving the highest affirmative vote
shall prevail.

[ksimons]

27. it'll be interesting to see what occurs

for instance, if voters approve of an amendment which conflicts with a basic premise of the constitution on another level, the 'broad interpretation' issue which is there to keep open rather than narrow interpretation to favor access to the constitutional benefits of all citizens would appear to prevail. Having said that, no doubt this will not be concluded within the week. :)

[Manifestor_of_Light]

29. The proposition is unconstitutional.

The CA Supreme Ct already ruled that gay marriage was legal. They cannot pass a proposition and invalidate same sex marriages already performed. That would be an ex post facto law, specifically prohibited in the US Constitution.

The full faith and credit clause guarantees that each state will respect the laws of other states. IOW, if you are gay and married in CA, MA or CN, and move to another state, that state has to recognize the vaildity of your marriage.

The equal protection clause of the 14th amendment applies also.

So that's three rules in the U.S. Constitution: No ex post facto laws, full faith and credit clause, and equal protection clause.

They can't stop gay marriage from eventually becoming legal in all 50 states.