More Amicus Briefs Filed Opposing Prop. 8

[AntiFascist]

The Anti-Defamation League, Asian Law Caucus, Bet Tzedek Legal Services, and Japanese American Citizens League and Public Counsel argues:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/letter-support-s168047-2.pdf

II. Prop. 8's validity is of sufficient public importance for the Court to exercise original jurisdiction.


III. ....

A. Prop. 8 threatens the permanent and abiding nature of the requirement that laws must apply equally to all - the most basic principle of democratic government. Respondents might argue that Prop 8 is a simple, one-sentence alteration of the Constitution and therefore is not sufficiently far-reaching to constitute a revision. But the simplicity of a constitutional provision says nothing of its scope. As this Court rightly observed, "even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." (Amador Valley Joint Union High School Dist. v. State Board of Equalization)....Under this Court's precedents, such a drastic alteration of the core principle of equal protection - which would open the door to evisceration of the protections of the suspect classification doctrine - is a revision, not an amendment. As such, Prop. 8 cannot be enacted through the typical initiative process. (Raven v. Deukmeijian; Livermore v. Waite).

1. The History of Discrimination against Disfavored California Minorities Underscores the Importance of the Constraints the People Placed on Themselves through Article XVIII

they then list a number of discriminatory measures from the past:

- tax statutes designed to drive Chinese immigrants from the state
- statutes prohibiting person designated as "black or mulatto...or Indian" from testifying "in favor of, or against, any white person"
- statutes and ordinances barring "Negroes, Mongolians, and Indians" from public schools.
- statutes prohibiting marriage between "white person negroes, Mongolians, members of the Malay race, or mulattoes."

the People have enacted similar discriminatory statutes through the initiative process, as well:

- an initiative that strengthened and expanded the so-called Alien Land Law, which prohibited certain immigrants who were ineligible for citizenship from owning agrigultural lands (enacted through a campaign with a bitter anti-Japanese flavor.)
- 1964 Proposition 14, which amended the CA Constitution to overturn recently enacted state laws prohibiting racial discrimination in housing. (this Court ruled that it violated the Federal equal protection clause and this decision was affirmed by the US Supreme Court.

2. Enforcing Article XVIII in This Case Preserves the Constitution as the Ultimate Expression of the People's Will

statutory measures enacted by initiative are subject to the same constitutional constraints as ordinary legislation. (in re Marriage Cases)...The suspect classification doctrine, enforced by the courts, thus safeguards the minority from the biases of the majority.

Quoting from re Marriage Cases: "the people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood there was a real difference between amendment and revision."

Though Respondents likely will argue that Prop. 8 must be upheld in order to carry out the People's will, the opposite is true. The People have distinguished between amendments and revisions in article XVIII and have imposed on their own initiative power an important restraint to be enforced by the courts.

<They go on to argue that the People are not prevented the power to change the ultimate expression of their will, but they must go through the deliberative process of extensive debate by the Legislature followed by a vote of the People>

B. Stripping Gay and Lesbian Individuals and Couples of Equal Protection with Regard to Marriage Jeopardizes Their Right to Equal Protection in All Areas.

these rights include: the right to parent, to work in certain professions, or even to enter into private consensual relationships...while it is true that measures might violate the federal Constitution, the People of California should not have to depend on the federal Constitution or federal Supreme Court to protect their basic civil rights...to deny gay and lesbian people equal protection with regard to the fundamental right to marry is to stigmatize them as unworthy of equal protection across the board...

<This is important here:> "there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term 'marriage' is denied only same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship.'

...As the decision in Hall illustrates, when a law negates the inherent dignity and equality of a particular group in one area, that denial inevitably has far-reaching - and often devastating - effects. Prop. 8 supporters might sincerely wish to confine their discriminatory treatment of gay and lesbian people to marriage. Nevertheless, history - and this Court's suspect classification doctrine - teaches that such measures inevitably impose "the stigma of inferiority and second class citizenship."

C. Denying Equal Protection to One Group Undermines the Principles of Equal Protection for All.

Permitting Prop. 8 supporters to forego the revision process would jeopardize the freedom of all California minority groups...In light of the long history of descrimination against many groups in California, including persons of Asian and Pacific Island descent, this Court should not assume that introduction of such measures is far-fetched.

...Californians are entitled to the independent protections of their state Constitutions.

<amici: :yourock:>

[proud patriot]

1. kick

:hi:

[pepperbear]

2. k & r

[FreeState]

3. K&R

[FreeState]

4. LA County joined today as well

http://latimesblogs.latimes.com/lanow/2008/11/the-los-angeles.html

Emotional Board of Supervisors backs Prop. 8 challenge*
12:52 PM, November 12, 2008
The Los Angeles County Board of Supervisors voted this afternoon to join a lawsuit filed by the City of Los Angeles, San Francisco and Santa Clara County challenging the constitutionality of Proposition 8, the anti-gay marriage initiative voters passed by a narrow margin this month.

The vote was carried by the board’s three Democrats: Supervisors Gloria Molina and Zev Yaroslavsky, who proposed the board join the lawsuit, and Supervisor Yvonne B. Burke, who voted in support.

Of the two Republicans, Supervisor Michael Antonovich was out of town, and Supervisor Don Knabe left the meeting just as speakers began.

More than a dozen speakers appeared in support of the board’s vote and opposition to Proposition 8, including Los Angeles City Atty. Rocky Delgadillo, San Francisco City Atty. Dennis Herrera and several gay couples. Both Molina and Yaroslavsky, who have officiated at same-sex wedding ceremonies since California legalized them in June, said they acted out of a sense of duty and personal responsibility.

[AntiFascist]

17. That's great ! Also, the Beverly Hills Bar Association...

joined by California Women Lawyers have filed an amicus brief in support of the Petition to Stay the amendment:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/letter-support-s1680xx-multi.pdf

[GodlessBiker]

5. Very nice!

[AntiFascist]

6. Amicus Brief filed by the San Francisco Bar Association....

Legal Aid Society - Employment Law Center, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and the Impact Fund echo the above arguments with these points:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/letter-support-s168047-3.pdf

There is no meaningful difference between permitting a majority of the State's voter to pass an initiative that denies equal protection of the law to a class of individuals with respect to a fundamental right, and permitting voters to remove the eqaul protection guarantee from the Constitution altogether...Creating "exceptions" to this guarantee renders it meaningless-not only for gay and lesbian individuals, but for everyone.....

Prop. 8 would also substantially alter California's preexisting constitutional scheme in two other important aspects. Prop 8 would radically change the definition of a "fundamental right" as one enjoyed by all individuals to one enjoyed by some, as decided by the majority of voters. And Prop. 8 would strip the courts of their ability to enforce the guarantee of equal protection with respect to a fundamental right belonging to a protected class. This encroachment on the courts' role offends the core principle of separation of powers that is embedded in our State's Constitution.

I. Prop 8 Would Eviscerate the Constitutional Guarantee of Equal Protection

There can be no doubt that an initiative that sought to repeal the Constitution's equal protection guarantee entirely would be deemed a "revison" of the Constitution and could not be enacted by a simple majority vote. Yet there is not conceptual difference between such a measure and one that denies equal protection to a class of individuals with respect to a fundamental right.

...Respondents may argue that the people should be permitted to define the scope of the Constitution's equal protection clause, just as the voters were able to define the scope of the prohibition on cruel and unusual punishment and reinstate the death penalty in People v. Frierson. But the proposition at issue in Frierson did not target a suspect classification or terminate a fundamental right, nor did it eliminate the prohibition on cruel and unusual punishment....Equality is not such a malleable concept. The right of gay and lesbian individuals to equal protection is not dependent on society's increasing acceptance of them. And no reasonable interpretation or Prop. 8 can deny that it treats gay and lesbian individuals differently, and less equally than others, by denying them the fundamental right to marry the person they love. Because the core promise of the equal protection guarantee is that all individuals will be treated the same, creating an exception for a particular minority group makes illusory the equal protection clause for all of us.

It is further argued that to suggest that the federal consitution's equal protection clause will somehow fill the hole Prop. 8 makes in the State Constitution's guarantee of equal protection..."The California Consitution is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism but also the historic bases of state charters." For example, the State Constitution examines certain classifications under the lens of strict scrutiny that are accorded only intermediate scrutiny in federal equal protection analysis.

II. Proposition 8 Would Alter Radically the Consitutional Principle that Fundamental Rights Must Be Guaranteed to All Individuals

<It would be nice if they could anticipate the argument of the Respondents that gays lesbians are still afforded the right to marry members of the opposite sex.>

III. Prop. 8 Would Substantially Alter the State Constitutional Scheme, Which Provides that the Judiciary is the Final Arbiter of the Constitutional Guarantees of Equal Protection and Fundamental Rights

One of the most 'fundamental" protections is the courts' authority to "preserve constitutional rights, whether of individual or minority, from obliteration by the majority"...It is the Court's duty to consider whether classifications offend the equal protection clause of the California Constitution. Where a classsification involves a "'suspect classification' or touches on 'fundamental interests'...courts adopt an attitude of active and critical analysis, subjecting the classifications to strict scrutiny."...

...In Raven, this Court held that a proposition was a revision where it would have removed from the judiciary the right to construe the Constitution in criminal cases with respect to certain rights....The Court found that the amendment was a "broad attack on state court authority to exercise independent judgement" in construing rights guaranteed under the State Constitution. As such, the Proposition was an invalid revision, and could not be enacted by popular vote.

...By stripping the courts of the authority to interpret and enforce the Constitution's guarantee of equal protection and fundamental rights, Prop. 8 alters the balance of powers between the branches of government required by the Constitution.

[TexasObserver]

7. Can constitutionally granted rights be erased by majority vote?

That is the question.

I've read the main petition for relief, and I like our chances. I'm going to predict issuance of an injunction and issuance of a writ of mandamus, all in favor of the National Lesbians and others who are plaintiffs.

I like our chances, about 80-20.


The other side will move to recall the judges, and it will be time to show them some support.

[t0dd]

8. Recall the CA supreme court justices for upholding our constitution?

Why is it supporters of proposition 8 can use fear and intimidation to get what they want? I'm feeling optimistic about proposition 8 being overturned, but it deeply bothers me these individuals feel so compelled to do whatever they can to deny a fundamental right to a group of people. Aren't there more important things to worry about in this world? Is it really necessary for you to make threats to achieve your intolerant goals?

There have been similar remarks regarding the legalization of same-sex marriage in Connecticut:

Peter Wolfgang, the executive director of the Family Institute of Connecticut, a gay-marriage opponent, acknowledged that banning gay weddings in Connecticut will be difficult but vowed not to give up. He condemned the high court's decision as undemocratic.
"Unlike California, we did not have a remedy," Wolfgang said. "It must be overturned with patience, determination and fortitude."

Really? You feel that, despite Connecticut not wanting a constitutional convention and a majority of voters there approving same-sex marriage, you have to dedicate yourself to destroying the happiness of others?

These people are pathetic and cruel, and they know nothing of religion. It should be about spreading love instead of condemnation. Why can't people realize that?

[TexasObserver]

9. They've already made noises about doing so.

I'm sure they will try to remove the judges they don't like, but think it will fail.

They're mean people, driven by a lifetime of expecting to get things their way.

[AntiFascist]

10. Excellent!

:thumbsup:

The governor is responsible for appointing replacement judges, and he has come out very much in favor of overturning Prop 8. It seems unlikely that he would appoint a judge who wouldn't endorse the constitutional arguments in this case, or for future amendments that attempt to do the same thing.

The main point is: the people can still have the Constitution revised, but when it comes to basic civil rights they need to go through the proper channels to do it. Prop 8 could render the state's Equal Protection clause useless. No judge in their right mind would let this slide.

[AntiFascist]

11. kick n/t

[MineralMan]

12. I believe the No on 8 folks

will prevail in this. A simple referendum should not, and cannot, alter the basic rights in the state's Constitution. It's a good cause.

I suspect that the CA Supreme Court will respond by negating the referendum, for that very reason.

If, for example, a referendum passed that denied the right of marriage to, say, people of hispanic origins, it would be thrown out instantly. This is no different.

[AntiFascist]

13. OK, but here is an argument that I would like to see addressed...

Nobody is depriving homosexuals the right of marriage, they can still marry members of the opposite sex.

I know how I would respond to this and it has something to do with the pursuit of happiness, but what would make a good legal response?

[MineralMan]

14. The question doesn't deserve an answer

In my opinion. The point of marriage is that you marry the person you want to marry and he/she marries you because he/she wants to. The gender of the person doesn't seem to matter to me.

I believe the California Constitution does not define the gender of the people marrying. That means that the general equality provision applies. That's what the court decided.

Also, I don't believe the referendum process there allows revisions to the Constitution...only additions. Since Prop 8 revises the basic equality provision, it's not valid. That would be the general argument I'd use.

[AntiFascist]

15. Yes I agree with all of that...

but I'm just asking about the specific point of gay people being 'denied' the right of marriage. If marriage in and of itself is being redefined then gay people are not being denied the ability to marry someone of the opposite sex. I know that there is an argument against this, but I'd like to see it in legalise.

You may not think this question deserves an answer, but what if Jerry Brown as AG, who is in the position of having to defend Prop. 8, decides to ask it? How should the lawyers respond? In fact, the CA Supreme Court today just requested an opposition argument (opposition to Prop 8 being stayed) from the AG.

[AntiFascist]

16. Amicus Brief filed recommending Denial of Request for Stay...

filed by the Pacific Justice Institute which provides extensive legal counsel and representation to churches and people of faith.

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-letter-pacjust-denial.pdf

They are arguing that;

1. The CA Supreme Court lacks the authority to stay the implementation of a duly enacted amendment to the Constitution.

2. A stay will alter the status quo...same sex marriage was the status quo for only 143 days whereas marriage between a man and a woman has been the status quo since 1850.


To address point 1: couldn't it be argued that the very nature of Prop 8 as an amendment or as a revision is at issue, therefore enactment of the initiative should be stayed until it is determined to really be a "duly enacted amendment" or an unconstitutionally enacted revision.

For point 2; "status quo" does not undo the injustice that was rectified by the Marriage Ruling. Until Prop. 8 is ever determined to be valid, the SC has already ruled that denial of marriage rights to gays and lesbians involves the denial of a Fundamental Right to a protected minority. Just because the former status quo favored the majority opinion that gays and lesbians should not be protected, does not mean that the former status quo should be restored.

[AntiFascist]

18. UC Law Professors filed an amicus brief in July against Prop 8...

including a distinguished chair and dean at UC Berkeley Law School.

This was to support the lawsuit to remove Prop. 8 from the ballot. Since the court declined to rule on that case, these arguments should still be applicable in overturning Prop 8.

http://www.nclrights.org/site/DocServer/2008.07.10.Amicus-Law_Profs.Letter_ISO_Petitioners.pdf?docID=4362

I. The Proposed Fundamental Alteration To The Preexisting Constitutional Framework Is A Revision, Not an Amendment

...although the power of the California initiative is undeniably formidable, it is expressly limited by the California Contitution, and cannot be used to bring about "revisional effect" that is "substantially beyond the system of checks and balances which heretofore has characterized our governmental plan" (McFadden)

...

...In practical effect, <this proposition> would give the electorate the power to override a Court's careful deliberation and analysis of compelling need, and substitute unchecked majoritarian will through the relatively non-deliberative initiative process.

II. In California's Constitutional Form of Government, Courts Hold the Central Judicial Function of Ensuring The Protection of Basic Civil Rights Against Arbitrary or Prejudicial Action By the Majority.

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (In re Marriage Cases)

...

"The separation of powers doctrine articulates a basic philosophy of our constitutional system of government; it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch. (Art. IV, V and VI; The Federalist 1788) Of such protections, probably the most fundamental lies in the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority...Because of its independence and long tenure, the judiciary probably can exert a more enduring and equitable influence in safeguarding fundamental constitutional rights than the other two branches of government, which remain subject to the will of a contemporaneous and fluid majority. (Bixby)

...

The guarantee against the divesting of individual rights by the majority is a bedrock constitutional concept. It is "too clear for argument that constitutional law is not a matter of majority vote. Indeed the entire philosophy of the Fourteenth Amendment teaches that it is personal rights which are to be protected against the will of the majority. (Lucas) This is because one of the purposes of the Constitution is to "protect minorities from the occaisional tyranny of majorities. No plebiscite can legalize an unjust discrimination." (Hall v. St. Helena Parich School)

...

"The limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the violence of public agents transcending the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government. (Hurtado v. California)

III. The California Supreme Court Repeatedly Has Exercised Its Core Judicial Function To Protect Vulnerable Minorities, A Function That Would Be Severely Compromised By the Proposed Initiative.

A. Perez v. Sharp <challenging the anti-miscegenation statue>

"For many years progress was slow in the dissipation of the insecurity that haunts racial minorities, for there are many who believe that their own security depends on its maintenance. Out of earnest belief, or out of irrational fears, they reason in a circle that such minorities are inferior in health, intelligence, and culture, and that this inferiority proves the need of the barriers of race prejudice" <This is similar to the irrational fear that gay marriage will somehow damage children>

B. Fujii v. California <Challenging the California Alien Land Law which prohibited all aliens who were "ineligible for citizenship" from owning land - discriminating against Japanese>

C. Sail'er Inn, Inc. v. Kirby <challenged a statute discriminating against female bartenders>

...

The passage of years has borne out that each <above> decision was legally, morally, and socially just. Indeed, the concept of seeking justice under the law rather than bending to then-prevailing societal mores is built into our Constitution.

...

The proposed measure seeks to override the Court's substantial deliberation and constitutionally-grounded reasoning regarding equal access to marriage. If approved, it would lay the groundwork for depriving minorities by simple amendment to the state's constitution form any right provided to the rest of society. It proposes to eradicate constitutional protection for members of a vulnerable class with respect to a fundamental right. This revolutionary concept is far beyond the boundaries of constitutional checks and balances, and cannot be viewed as a mere "amendment" to the Constitution.

CONCLUSION
...

...The measure permits "the power of numbers" while "wielding the force of government," to transcend constitutional limits and dispossess susceptible minorities of their fundamental civil rights. It creates a dangerous and powerful foothold toward future abrogation of the rights of other vulnerable members of society.

As such, the proposed measure is nothing short of a radical revision of our basic governmental plan. It must not go forward inappropriately as an initiative, for it would expose protected individuals to the very discrimination from which they have been freed.