California Supreme Court grants review of challenges to gay marriage ban

Illustrated rainbow pride flag on a white background.

The California Supreme Court has agreed to hear a case filed by supporters of gay marriage challenging the validity of Proposition 8.

On November 4th voters in the state approved the ballot measure, which seeks to deny same-sex couples in California the right to marry.

Yesterday the court agreed to hear the case and set an expedited briefing schedule but denied an immediate stay.

52% of voters approved Prop 8, which was placed on the ballot after the Supreme Court ruled in May that a previous ballot measure banning gay marriage violated the equal protection clause of the California Constitution and the fundamental right to marry.

The court struck down the ban, and between June and November an estimated 18,000 gay and lesbian couples got married.

Proposition 8 would completely eliminate the right to marry only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group.

On November 5, 2008, the National Centre for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal filed a lawsuit challenging the validity of Proposition 8 in the California Supreme Court on behalf of six individuals and Equality California.

The City of San Francisco, joined by the City of Los Angeles and Santa Clara County, filed a similar challenge,
as did a private attorney in Los Angeles.

The lawsuits allege that, on its face, Proposition 8 is an improper revision rather than an amendment of the California Constitution because, in its very title, which was “Eliminates the right to marry for same-sex
couples,” the initiative eliminated an existing right only for a targeted minority.

If permitted to stand, Proposition 8 would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only for a particular group. Such a change
would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.

According to the California Constitution, such a serious revision of the state Constitution cannot be enacted through a simple majority vote, but must first be approved by two-thirds of the Legislature.

Since the three lawsuits submitted on November 5, three other lawsuits challenging Proposition 8 have been filed.

In a petition filed on November 14, 2008, leading African American, Latino, and Asian American groups
argued that Proposition 8 threatens the equal protection rights of all Californians.

On November 17, 2008, the California Council of Churches and other religious leaders and faith organisations representing millions of members statewide, also filed a petition asserting that Proposition 8 poses a severe threat to the guarantee of equal protection for all, and was not enacted through the constitutionally required process for such a dramatic change to the California Constitution.

On the same day, prominent California women’s rights organizations filed a petition asking the Court
to invalidate Proposition 8 because of its potentially disastrous implications for women and other groups that face discrimination.

Over the past 100 years, the California Supreme Court has heard nine cases challenging either legislative enactments or initiatives as invalid revisions of the California Constitution. In three of those cases, the
Court invalidated those measures.