The San Francisco City Attorney is filing a legal challenge to Prop 8, the Constitutional amendment that appears to have passed (all votes have not been counted, but it's unlikely the outcome will change when they are) in yesterday's election, which eliminated the existing right of same-sex couples to marry. From the San Jose Mercury News:
The San Francisco City Attorney's office says he plans to challenge the validity of a ballot measure that would change the state constitution to ban gay marriage.
Spokesman Matt Dorsey says City Attorney Dennis Herrera will file the legal challenge in the California Supreme Court if the measure passes.
In addition, Gloria Allred announced she's filing a lawsuit on behalf of a married couple, challenging the Proposition's constitutionality. [ALSO: ACLU and other groups filed a petition today to invalidate Prop 8 -- see update below.]
From the Contra Costa Times:
Robin Tyler and Diane Olson of North Hills said Los Angeles attorney Gloria Allred will file the new lawsuit containing a new and controversial legal argument as to why Proposition 8 is unconstitutional.
Tyler, 66, and Olson, 54, married last June 16 in a traditional Jewish ceremony on the steps of the Beverly Hills courthouse, becoming one of the first two same-sex couples to marry in California under the new state nuptial laws they helped overturn.
The two couples were allowed to marry on the eve of when the state begins to issue marriage licenses to same-sex partners because of their unique roles in lawsuits from Los Angeles and San Francisco that led to last May's Supreme Court decision declaring the ban on gay marriage unconstitutional.
Most of the speculation I've seen about a constitutional challenge focuses on this idea: Since the court ruling that led to this proposition found that marriage was a "fundamental right" under the state constitution, you cannot take that right away by simply amending the constitution; you would need to revise it.
While an amendment only needs a simple majority vote, a revision requires a constitutional convention, which itself requires a two-thirds legislative vote -- something highly unlikely to happen in California. I've seen some suggestions that can also be accomplished with a two-thirds popular vote as well, but I've been unable to determine if that's the case, and doubt they'd ever get that on this issue.
I'm curious, however, at Allred's claim that her constitutional challenge will be "new" and "controversial." Has anyone heard any other speculation as to a court challenge on the grounds that this amendment is itself unconstitutional?
On a personal note, while I truly left everything on the road in this fight, I felt last night and early this morning that I, along with all other lesbian and gay Californians, had been left on the road. I vented, cried, and raged. I believe I said some wild-eyed things about burning stuff down. I know I'm still unable to feel any joy at all over the election of Barack Obama, despite the hours and thousands of dollars I gave and raised for him.
I still can't believe that millions of total strangers who have never so much as laid eyes on me had the right to vote on my rights and equality at all, let alone that they voted against them. If this was, in fact, an unconstitutional proposition, it means they did not have that right. It won't change the fact that they voted how they did, but it will take some of the pain away.
I did GOTV yesterday for No on 8, and it was heartening to hear all the expressions of support from people of every age, race, ethnicity, and number of body piercings. I was working a corner in a very conservative part of town (yes, they exist, even here in San Francisco), and we had little old ladies, African-American teenaged boys, truck drivers, bus drivers, Fed-Ex guys, Latino moms with their kids in tow, wizened old Chinese guys, dog walkers, just about everyone you can imagine (and in San Francisco, by all means let your imagination run free) come up and tell us they'd voted against 8, and thank us for our fight.
That was a bitter comedown, but if there will be effective legal challenges, I'm going to let it give me strength to keep on fighting.
UPDATE! The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights have filed a petition to the California Supreme Court to invalidate Prop 8! From a breaking news release:
The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group – lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.
[....]
"If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us," said Jenny Pizer, a staff attorney with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."
"A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution," added Elizabeth Gill, a staff attorney with the ACLU of Northern California.
The groups filed the lawsuit today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.
The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.
"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," said Shannon Minter, Legal Director of NCLR. "It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Proposition 8 may pass, the courts will have to weigh in and we believe they will agree that Proposition 8 should never have been on the ballot in the first place."
The whole release is here.