The California Supreme Court may decide
today whether it is to review a challenge to Proposition 8 – the
Constitutional amendment that forbids gay marriage in the state –
or dismiss it.
The highest court has been under
intense pressure to act from all sides, with gay marriage ban backers
threatening to oust any justice that votes in favor of invalidating
the Constitutional amendment and gay activists protesting in the
Gay activists began marching and
protesting the day after California voters approved the gay marriage
ban two weeks ago. On Saturday, over 300 cities participated in a
coast-to-coast protest. Organizers say 100,000 people showed up at
city halls and public venues to express their disapproval of the
California Constitutional amendment, as well as similar measures
passed in Florida and Arizona.
Proponents of the gay marriage ban have
already threatened to work to oust any justice who votes to
invalidate Proposition 8. And they have already begun targeting
politicians who support gay marriage, Senator Dianne Feinstein and
Governor Arnold Schwarzenegger included.
Tony Perkins of the Family Research
Council said last week that the governor was advocating “anarchy”
because he supported efforts to invalidate the Constitutional
amendment. Forty-four Democratic legislators have signed a friend of
the court brief in support of the challenge.
The six lawsuits filed by a coalition
of pro-gay rights groups, churches and local governments claim Prop.
8 is invalid becaue it alters the Constitution's “core commitment
to equality for everyone by eliminating a fundamental right from just
one group, lesbian and gay Californians.”
“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,” Jenny Pizer, a
staff attorney with Lambda Legal, said in a statement announcing the
The pro-gay rights groups say the gay
marriage ban used an improper vehicle – a voter ballot – to alter
the Constitution. They contend that such a measure is only valid
when making superficial changes to the Constitution. To change the
underlying principles of the Constitution, a measure must first be
approved by the Legislature before being submitted to the voters on a
ballot. Proposition 8 radically alters the California Constitution
by removing rights previously given by the Constitution itself, and
relied on the voter
ballot to accomplish its goal, rights groups say.
“A major purpose of the Constitution
is to protect minorities from majorities,” said Elizabeth Gill, a
staff attorney with the ACLU of Northern California. “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.”
A decision for review of the lawsuits
is not an endorsement of gay marriage. In fact, most scholars agree
the challenge is a longshot.
“It's very hard to argue that this
narrowly written Constitutional amendment changes the fundamentals of
our state government,” Ethan Leib, a Constitutional law professor
at UC Hastings in San Francisco, told SFGate.com.
Leib, who is a supporter of gay
marriage, called California's Constitutional amendment procedure
“flexible and inviting,” because “the people, rather than the
judges, get to say what the Constitution means.”