Legality of Same-Sex Marriage Ban Challenged

Gay rights advocates march in a predominantly Latino neighborhood in Los Angeles to show their support for overturning Proposition 8.
Gay rights advocates march in a predominantly Latino neighborhood in Los Angeles to show their support for overturning Proposition 8. (By David Mcnew -- Getty Images)
By Ashley Surdin
Washington Post Staff Writer
Tuesday, November 11, 2008

LOS ANGELES -- The future of same-sex marriage in the Golden State will rest, once again, in the hands of its highest court. But this time, its fate will hinge on a different question: Can a state constitutional ban on same-sex marriage go before voters? Or must it go before the legislature first?

The answer, legal experts say, will determine whether gay rights advocates can overturn Proposition 8, a recently passed ballot measure that overruled a state Supreme Court judgment that legalized same-sex marriage.

Three lawsuits, ready since the initiative was green-lighted for the November ballot, have been filed with the California Supreme Court asking it to stop the state from enforcing the proposition until the court has decided on its constitutionality. The suits aim to undo the measure on grounds that, under the equal protection clause in the state's constitution, a majority of voters are not allowed to revoke equal rights intended for everybody.

Now, nearly six months after its landmark decision, the California Supreme Court is being asked again to determine the fate of the nearly 18,000 unions made since May, and the possibility of those to come.

As the legal questions were being raised, gay rights advocates made plans for continued demonstrations, including what they hope will be protests Saturday at city halls statewide. Should they succeed, it will be yet another in a series of protests since passage of the ballot initiative.

In Sacramento, more than 3,000 gay rights advocates descended on the steps of the state capitol on Sunday, some carrying "Love Not H8" signs. In Oakland, Los Angeles and Orange County, hundreds of protesters flanked Mormon temples and evangelical churches, objecting to their overwhelming support for Proposition 8.

Gov. Arnold Schwarzenegger (R), who opposed Proposition 8 and called it "a total waste of time," encouraged the fight to continue. "They should never give up," he said in an interview on CNN. "They should be on it and on it until they get it done."

Schwarzenegger has been ambivalent on the issue, previously rejecting legislation allowing same-sex marriage and stating that marriage should be between a man and a woman, but he indicated Sunday that he is hopeful that the California Supreme Court will "undo" the measure.

The court did just that May 15, in voiding a voter-approved ballot initiative -- Proposition 22 -- with identical wording to Proposition 8. But legal experts say this time the proposition would not be as easy to overturn. Unlike Proposition 22, which in 2000 created a statute that was trumped by the state constitution, Proposition 8 is part of the constitution.

In other words, whereas Proposition 22 was found to violate the equal protection clause of the state constitution, Proposition 8 is now part of the equal protection law of the constitution.

"In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution," said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, "it fundamentally comes down to whether the court considers this a major change or not a major change."

Specifically, opponents of Proposition 8 argue that this kind of change is a "revision," not an "amendment." The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.

If, as opponents say, the court finds that Proposition 8 qualifies as a revision, then the proposition would be found unconstitutional because its proponents would have, in effect, skipped the required legislative step. If the court strikes down the initiative on these grounds, it is not certain the lawmakers would take up the issue again.

If the court sides with Proposition 8 proponents and allows the amendment, the recourse for gay rights activists would be to put the matter to voters again through their own initiative or take the matter to federal court -- something most activists are not ready to do, given the current composition of the Supreme Court.

Opponents of same-sex marriage have denounced the efforts to once again have the state's highest court rule on the validity of an initiative banning the practice.

Andrew Pugno, general counsel of, the coalition behind Proposition 8, has called the lawsuits "frivolous and regrettable."

"We're confident that they will ultimately be thrown out," he said. "An amendment rises to the level of a revision only when there's a substantial change in the structure of government, how government operates. . . . This is just a single, significant but narrow policy change. It does not change how government functions in California."

The Supreme Court has acknowledged the power of the initiative process to amend the constitution, he said.

It is not clear when the state's highest court will take up the issue, but experts say it probably will be soon, given that the legality of 18,000 same-sex marriages hangs in the balance. California Attorney General Edmund G. "Jerry" Brown Jr. said the marriages will remain valid, but legal scholars say that is uncertain.

Legal experts say it is hard to predict how the California Supreme Court will view the proposition because there is little case law to guide it. Judges coming up for reelection may balk at going against voters, and the initiative is unlike anything it has dealt with.

"We have this track record in California of holding our justices accountable to the popular will," said Vikram Amar, a law professor at the University of California at Davis. "As a predictive matter, I just don't see this challenge as likely to prevail."

David B. Cruz, a law professor at the University of Southern California in Los Angeles, disagreed. He said the proposition allows a bare majority to take away a fundamental right from a minority group entitled to the greatest judicial protection.

"It would cut the courts out of the loop and not leave them to play their role, their traditional role of protecting the minority," he said.

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