The AP reports that over one–third of California’s legislators filed a friend-of-the-court brief calling on the state’s Supreme Court to overturn Proposition 8 yesterday:
“Forty-four members of the California Legislature filed a friend-of-the-court brief in support one of the three lawsuits seeking to invalidate Proposition 8. The case, brought on behalf of gay couples who have not yet married, argues the ban should be tossed out because voters did not have the authority to make such a dramatic change in state law. The brief argues that the gay marriage ban improperly usurped the state Supreme Court’s duty to protect minority groups from discrimination.”
“Three lawsuits, ready since the initiative was green-lighted for the November ballot, have been filed with the California Supreme Court asking it to stop the state from enforcing the proposition until the court has decided on its constitutionality. The suits aim to undo the measure on grounds that, under the equal protection clause in the state’s constitution, a majority of voters are not allowed to revoke equal rights intended for everybody.”
Here’s the gist of what it may come down to:
“‘In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution,’ said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, ‘it fundamentally comes down to whether the court considers this a major change or not a major change.’ Specifically, opponents of Proposition 8 argue that this kind of change is a ‘revision,’ not an ‘amendment.’ The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.”
Attorney Lisa Bloom touched on this in a video I posted yesterday.
When will the Court take up the issue?
“It is not clear when the state’s highest court will take up the issue, but experts say it probably will be soon, given that the legality of 18,000 same-sex marriages hangs in the balance. California Attorney General Edmund G. ‘Jerry’ Brown Jr. said the marriages will remain valid, but legal scholars say that is uncertain. Legal experts say it is hard to predict how the California Supreme Court will view the proposition because there is little case law to guide it. Judges coming up for reelection may balk at going against voters, and the initiative is unlike anything it has dealt with.”
Court spokeswoman Lynn Holton said yesterday that the Court may rule as early as this week.
And, big surprise, guess who’s back? The Christian legal group Liberty Counsel, who attempted unsuccessfully to halt same-sex marriages last June.
The SF Chronicle reports: “Three suits filed the day after the election open the door to ‘step-by-step elimination of the people’s right to amend the Constitution by initiative,’ attorneys with Liberty Counsel said Monday in papers submitted on behalf of the Campaign for California Families…Calling the suits ‘patently frivolous,’ Liberty Counsel founder Mathew Staver said in a statement Monday that ‘it makes no sense that four judges can rewrite the historic definition of marriage and more than 5 million people (who voted for Prop. 8) cannot restore it to its common understanding.”
REMINDER: There will be a peaceful demonstration opposing the passage of Proposition 8 outside New York’s Manhattan Mormon Temple on Wednesday evening at 6:30 pm.