http://www.alternet.org/sex/106161/gay_marriage_ban_looks_to_have_passed_in_california%2C_but_is_it_legal/Gay Marriage Ban Looks to Have Passed in California, but Is It Legal?By Karen Ocamb, AlterNet. Posted November 6, 2008.
Lawyers and marriage equality proponents are calling Proposition 8 illegal, and they may have good legal ground to stand on.Hundreds of gay people and their allies at the Music Box in Hollywood on Election Night thundered their approval when states such as Pennsylvania and Ohio were called for Barack Obama. Like so many others around the world, gay people, anxious for change, felt the pendulum of history about to make a huge sweep in a progressive direction.
In between the election results and foot-stomping music, a steady stream of elected officials -- including new hero Jack O'Connell, California's superintendent of education, who appeared in a No on Prop. 8 ad condemning the "lies" promulgated by the Yes on 8 campaign -- promised to "fight for equality" even if Proposition 8 passed. But for most, that was unthinkable. How could the people of California in 2008 vote to eliminate the existing fundamental right of same-sex couples to marry and write that prohibition into the state constitution?
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Several lawsuits were immediately filed seeking an injunction and arguing the unconstitutionality of Prop. 8 to the California Supreme Court. Attorney Gloria Allred and her partner John West filed a suit in the high court on behalf of their clients Robin Tyler and Diane Olson, who were the first lesbian couple married in Los Angeles after same-sex marriage became legal.
"Prop. 8, if it passes, conflicts with the equal protection clause (in the California Constitution)," Allred said at an afternoon news conference in her Los Angeles office on Wednesday. "We will argue to the court that Prop. 8 is a disguised revision to the constitution which cannot be imposed by the ordinary amendment process, which only requires a simple majority. We believe that then the court must hold that California may not issue marriage licenses to non-gay couples because if it does, it would be violating the equal protection clause as straight couple would have more rights, by being allowed to marry, than gay couples."
Lambda Legal, the National Center for Lesbian Rights, and the ACLU also filed a lawsuit directly with the high court challenging Prop. 8. They, too, allege that the measure is invalid because it failed to follow the proper process required to make far-reaching changes to the California Constitution -- such as denying a fundamental right to a minority and prohibiting the courts from remedying abuses of that minority's rights.
Late in the afternoon, Los Angeles City Attorney Rocky Delgadillo joined yet another lawsuit filed by San Francisco City Attorney Dennis Herrera and Santa Clara County Counsel Anne C. Ravel to invalidate Prop. 8.
"Equal protection under the law is a bedrock principle of our constitutional democracy," said Delgadillo. "Proposition 8 flies in the face of that principle and strips away fundamental rights from countless Californians. Proposition 8's supporters won a temporary victory, but only after waging a misleading campaign based on fear and bankrolled by out-of-state interests. I am committed to using every resource at my disposal to secure the full civil rights of my constituents and all Californians. We will not allow discrimination to be written into our state constitution, and I am confident we will preserve equal rights for all. This is California."
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