Lawmakers in California began the 2009-2010 legislative session by introducing resolutions in support of invalidation of Proposition 8 – the November 4 voter-approved constitutional amendment that forbids gay marriage in the state.

Freshman Senator Mark Leno introduced a resolution in the Senate, while Assemblyman Tom Ammiano introduced a similar measure in the Assembly. Both men are openly gay and members of the Legislature's gay and lesbian caucus. Senator Mark Leno was sworn into office on Monday, becoming the first openly gay man to serve in the California Senate.

The lawmakers join officials from San Francisco and several other California cities in supporting the challenge to Proposition 8 filed by a coalition of pro-gay rights groups, including the National Center for Lesbian Rights, American Civil Liberties Union and Lambda Legal.

The California Supreme Court will begin hearing arguments in the case in March.

“Proposition 8 eliminates the fundamental right to marry from same-sex couples and allows a slim majority to take away the equal protections of a single minority group, which violates one of the fundamental and founding principles of our Constitution,” said Equality California Executive Director Geoff Kors. “That type of unprecedented change to the Constitution puts the rights of all Californians at risk, and it's critical in our system of checks and balances that the Legislature weigh in on such fundamental revisions to the Constitution.”

Both resolutions mirror legal arguments made by gay rights activists challenging Proposition 8: That Proposition 8 is an illegal revision to the state Constitution. A revision requires legislative approval before being sent to the voters, while an amendment may be passed with a simple voter majority.

Proposition 8 was passed with a simple voter majority. Yet it fundamentally altered the equal protection clause of the state Constitution, making it invalid, gay activists argue.

“Proposition 8's revision to the California Constitution violates key structural checks and balances built into our legal system,” said Democratic Senator Leno. “Overnight, the constitutional protections of thousands of tax paying, law abiding California citizens were stripped from them by a simple majority vote, without a prior two-thirds vote by both houses of the legislature, thereby trampling on the fundamental right to equal protection.”

“You'd think that these legislators would be focused on resolving the budget deficit or improving the economy,” said Ron Prentice, chairman of, the principal backer of the gay marriage ban. “Instead, they seem more interested in grandstanding for the cameras and thumbing their noses at voters who enacted Proposition 8 by a nearly 600,000 vote margin.”

Neither resolution holds any force of law, and most legal experts say they are unlikely to sway the court.

“This is the court's decision, not the Legislature's, just as whether you balance the budget is the Legislature's decision and not the court's,” Jesse Choper, the Earl Warren Professor of Public Law at UC Berkeley's School of Law told the San Francisco Chronicle.

“This resolution adds nothing to the debate about the validity of Proposition 8,” said Andrew Pugno, general counsel of “It is simply designed to get press coverage for the legislators involved. The California Supreme Court, at our request, has already decided to hear the challenges to Proposition 8. We are confident that Prop. 8 will be upheld, as many legal scholars have recently commented. The Court is not swayed by meaningless legislative resolutions that have no bearing on the outcome of the court challenges.”

The resolutions, however, do send a powerful message to voters in California who approved the measure by a slim majority. Lawmakers opposing the resolution might be targeted by gay rights activists as homophobic, while the pro-Prop 8 forces have suggested they would work to unseat justices and politicians who work – or vote – to overturn the gay marriage ban.

“California legislators have much important work to do,” Prentice said. “Introducing meaningless resolutions that insult voters for approving Proposition 8 is not the best way for them to spend their time.”