Challenging Prop 8

Constitutional Change Does Not Apply to
Existing Marriages

California Attorney General Jerry Brown agrees that the marriages of an estimated 18,000 same-sex couples between June 16 and November 4, 2008 are still valid in the state of California and must continue to be honored by the state.

There is nothing in the language of Prop 8 that suggests the initiative could apply to couples who have already legally married. Lambda Legal is committed to seeing that all couples married in California continue to receive legal protections and have their marriages respected as required under California law.

On March 5, 2009, the California Supreme Court heard oral arguments in the Prop 8 legal challenge.  Shannon Minter, Legal Director of NCLR, delivered a compelling and moving argument after months of preparation with Lambda Legal, the ACLU and other attorneys working on this historic case. In an unusual but powerful move, we sought and received permission from the Court to provide time for oral argument from Attorney Raymond Marshall who authored an amicus brief on behalf of the Asian Pacific American Legal Center, Mexican American Legal Defense and Educational Fund, Equal Justice Society, California NAACP and the NAACP Legal Defense and Educational Fund, Inc. arguing that the initiative process cannot be used to strip minority communities of their fundamental rights by a simple majority vote. The Court will issue a ruling within 90 days.

"It is simply wrong — legally and socially — to short-circuit the California Constitution and its equal protection guarantees," said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal and co-counsel in the legal challenge to Prop 8. "Proposition 8 is no 'garden variety' amendment that changes a tax or zoning or safety rule in a way that affects everyone equally. This is a radical attempt to strip a cherished constitutional right from just one targeted minority group and then to stop the courts from doing their most basic job of upholding the constitutional promise of 'liberty and justice for all'."

On January 15, hundreds of religious organizations, civil rights groups and labor unions, along with numerous California municipal governments, bar associations and leading legal scholars collectively urged the California Supreme Court to strike down Prop 8 in over 40 friend-of-the-court briefs. Just 10 days earlier, Lambda Legal, the National Center for Lesbian Rights (NCLR) and the American Civil Liberties Union (ACLU) filed a reply brief in the California Supreme Court, after the Court agreed to review the validity of Prop 8 in response to a lawsuit filed by the groups in November. The groups argue that Prop 8, which was a voter initiative, is invalid because it improperly attempts to undo the California Constitution's core commitment to equality and deprives the courts of their essential role of protecting the rights of minorities. According to the Constitution's text, such changes can only be pursued, if at all, through the constitutional revision process, not with an initiative.

"We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community," says Eva Paterson, president of the Equal Justice Society, one of the civil rights groups that participated in the friend-of-the-court brief authored by Raymond Marshall. "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."

A coalition of more than 50 California labor organizations — representing more than two and a half million working men and women in California — joined with over 60 current and former California legislators, three dozen bar associations and many others in speaking out against the invalid initiative. The California Constitution requires that any significant changes in the roles played by the different branches of government at least must be approved by two-thirds of both houses of the state legislature before going to voters as a proposed constitutional revision. That didn't happen with Prop 8. Instead, Prop 8 improperly attempts to nullify the equality guarantee — a central constitutional principle that secures our form of government — with a simple majority vote through the initiative process.

In last year's breakthrough decision, the California Supreme Court ruled that same-sex couples have the same fundamental right to marry as other Californians, holding that laws that treat people differently based on their sexual orientation presumptively violate the equal protection clause of the California Constitution — the same doctrine that protects other minorities.

"Proposition 8 poses a grave threat to religious freedom," says Rev. Rick Schlosser, Executive Director of the California Council of Churches, which filed a brief on behalf of scores of religious denominations and millions of California people of faith. "If the Court permits same-sex couples to be deprived of equal protection by a simple majority vote, religious minorities could be denied equal protection as well — a terrible injustice in a nation founded by people who emigrated to escape religious persecution."

In December, California Attorney General Jerry Brown asked the California Supreme Court to declare Prop 8 invalid, explaining that the ballot measure is fatally defective because the government lacks the compelling grounds necessary to deprive "people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution." Brown believes that Prop 8 is indefensible and cannot stand, and separately agrees that the marriages that 18,000 couples contracted between June and November are still valid, a position also taken in briefs submitted by Governor Arnold Schwarzenegger's office.

"It's extraordinary to even propose to negate lawful marriages retroactively and well-established rules prevent it," says Jennifer Pizer. "Even if Prop 8 were a valid initiative, the 18,000 couples who married after the Court's May 2008 ruling would still be legally married. But Prop 8 is not valid and never has been."

A brief also was submitted by major California businesses, including Google, Levi Strauss & Co. and the San Francisco Chamber of Commerce, which represents thousands of businesses employing millions of workers. The brief argues that writing inequality into the Constitution is bad for business.

"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 away an existing right only from a historically targeted minority group," says 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."

Following the argument on March 5, Lambda Legal’s National Marriage Project Director Jenny Pizer and Legal Director Jon Davidson discussed developments in the case against Prop 8. View the transcript. Meanwhile, Jennifer C. Pizer explains why "equality with exceptions is not equality."

For a case history and relevant court documents, visit Lambda Legal's case page for Strauss v. Horton.

November 5, 2008