Gay Rights Backers File Lawsuits Challenging Prop 8

Gay rights backers file 3 lawsuits challenging Prop. 8

Lawyers for same-sex couples argue that the anti-gay marriage measure is an illegal constitutional revision. Backers of the measure attack the suits.

By Maura Dolan and Tami Abdollah

November 6, 2008

Reporting from San Francisco and Los Angeles — After losing at the polls, gay rights supporters filed three lawsuits Wednesday asking the California Supreme Court to overturn Proposition 8, an effort the measure's supporters called an attempt to subvert the will of voters.

"If they want to legalize gay marriage, what they should do is bring an initiative themselves and ask the people to approve it," said Frank Schubert, co-chairman of the Proposition 8 campaign. "But they don't. They go behind the people's back to the courts and try and force an agenda on the rest of society."

Lawyers for same-sex couples argued that the anti-gay-marriage measure was an illegal constitutional revision -- not a more limited amendment, as backers maintained -- because it fundamentally altered the guarantee of equal protection. A constitutional revision, unlike an amendment, must be approved by the Legislature before going to voters.

The state high court has twice before struck down ballot measures as illegal constitutional revisions, but those initiatives involved "a broader scope of changes," said former California Supreme Court Justice Joseph Grodin, who publicly opposed Proposition 8 and was part of an earlier legal challenge to it. The court has suggested that a revision may be distinguished from an amendment by the breadth and the nature of the change, Grodin said.

Still, Grodin said, he believes that the challenge has legal merit, though he declined to make any predictions. Santa Clara University law professor Gerald Uelmen called the case "a stretch."

UC Irvine Law School Dean Erwin Chemerinsky said his research found too little case law on constitutional revisions to predict how the state high court might resolve the question.

"There is very little law about what can be done by amendment as opposed to revision," he said.

Jennifer Pizer, a staff lawyer for Lambda Legal, said the initiative met the test of a revision because it had far-reaching magnitude.

"The magnitude here is that you are effectively rendering equal protection a nullity if a simple majority can so easily carve an exception into it," she said. "Equal protection is supposed to prevent the targeting and subjugation of a minority group by a simple majority vote."

Glen Lavy, an attorney for the Proposition 8 campaign, called the lawsuits "frivolous" and "a brazen attempt to gut the democratic process."

The first action was filed by the ACLU, the National Center for Lesbian Rights and Lambda Legal. Santa Clara County and the cities of San Francisco and Los Angeles also sued, and Los Angeles lawyer Gloria Allred filed a third suit on behalf of a married lesbian couple.

All the lawsuits cited the constitutional revision argument, and two of them asked the court to block Proposition 8 from taking effect while the legal cases were pending.

"The court must hold that California may not issue licenses to non-gay couples because if it does it would be violating the equal protection clause," Allred said at a news conference.

A California Supreme Court spokeswoman said the court would act "as quickly as possible" on the challenges.

Other lawsuits could follow, but gay rights groups have called on supporters not to file cases in federal court. They fear that a loss at the U.S. Supreme Court could set back the marriage movement decades.

"We think it is early to go into federal court and ask federal courts to say we have a federal right to marry," Pizer said.

In addition to going to court, gay rights advocates sought to assure about 18,000 same-sex couples that their marriages will remain valid.

The groups cited comments by Atty. Gen. Jerry Brown, who has said the initiative was not retroactive. If the marriages are challenged in court, that case too would go to the California Supreme Court. Experts differ on whether the law would protect the marriages.

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.

Dolan and Abdollah are Times staff writers.