Lawsuits to Challenge Proposition 8 Passage

It's hard to get up sometimes after being punched in the gut, but that's what is already happening in California in the form of three lawsuits being prepared to challenge the likely passage of Proposition 8. One suit will challenge the procedure used for the initiative under Article 18 of the California Constitution and at first blush seems to have a viable argument - i.e., that minor changes can be done via simple initiative while those impacting basic rights require a more complex process including action by the state legislature. The more involved process would obviously help protect against the abuse of minorities by a simple majority of voters. Other grounds for the challenge may also arise under the U. S. Constitution's ban on ex-post facto laws not to mention the equal protection clause. Here are some highlights from 365gay.com:

*

San Francisco, California) At least three lawsuits are are in the works to challenge Proposition 8, a proposed amendment to the California constitution that would ban same-sex marriage. One of the suits is planned by City of San Francisco attorney Dennis Herrera’s office. A second is by the three LGBT groups that won the historic California Supreme Court ruling that allowed same-sex marriage in the state. The third is by one of the couples who were married after the court ruling went into effect in May.

*

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court on Wednesday, a preliminary move to a suit.

*
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.

*

The petition also says that Proposition 8 improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. The groups in the petition say that under 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. The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works, the groups said in a statement.

*

Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn’t happen with Proposition 8, and that’s why it’s invalid, the petition said.

*

Generally, the pro-gay litigators have run circles around the Christianist attorneys who often are high on ideology and religious fanaticism, but low on legal skills. I haven't yet taken a look at the California case law that may further elaborate on the constitutional amendment process.