Constitutional Law

Briefs Filed In Legal Challange To Calif.'s Prop 8

by Liz Seaton, Director of Projects and Managing Attorney of the National Center For Lesbian Rights

With the freedom to marry for same-sex couples temporarily halted in California, briefs are being filed on an expedited basis in the Proposition 8 challenge of Strauss v. Horton currently pending in that state’s Supreme Court. On November 19, 2008, the court took up the challenge brought by lead counsel the National Center for Lesbian Rights with the ACLU and Lambda Legal on behalf of several same-sex couples and Equality California, and ordered all briefing to be completed this month, with oral arguments to take place as soon as March. (Two other cases were also accepted and combined with the lead case, and several other cases filed by women’s groups, civil rights groups, and religious groups also challenging Prop 8 were filed but put on hold by the court pending the outcome of the lead case).

The challengers’ reply brief, filed on January 5, argues that Proposition 8 is invalid because it seeks to eliminate a fundamental right only for a targeted minority, which cannot be done through the initiative process. The brief also agrees with California Attorney General Jerry Brown, whose brief argues that certain fundamental rights, including the right to marry, are of such extraordinary importance that they cannot be abrogated – particularly for a particular group – without a compelling state interest. The challengers’ brief also argues —again in agreement with the Attorney General — that Proposition 8 cannot be applied to invalidate existing marriages because new laws and amendments are presumed to apply only on a prospective basis.

“If Prop 8 is permitted to stand, it would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only from a historically targeted minority group,” said NCLR Legal Director Shannon Minter. “Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.”

This week, women’s rights groups, religious organizations, civil rights groups, and labor unions, California municipal governments, children’s welfare organizations, bar associations, and leading legal scholars collectively urged the California Supreme Court to strike down Proposition 8. These briefs argue, among other things, that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution, and that the rights of a minority cannot be eliminated by a simple majority vote; that writing inequality into the constitution is bad for business; that Proposition 8 is invalid because it is a constitutional revision rather than amendment; that the rights of all Californians to equal treatment under the constitution would be compromised, and that union members’ rights could be in jeopardy if Proposition 8 were held to be valid; that Proposition 8 prevents the courts from exercising their essential constitutional role of enforcing the equal protection rights of minorities; and that Proposition 8 poses a serious threat to religious freedom.

“We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community,” said Eva Paterson, president of the Equal Justice Society. “If the Supreme Court allows Proposition 8 to take effect, it would represent a threat to the rights of people of color and all minorities.”

Complete details about the case are available here and here.

Full post as published by ACS Blog on January 16, 2009 (boomark / email).