ACLU File Lawsuit Challenging Proposition 8, Should It Pass
Posted on November 6, 2008
Leave it to the ACLU and judicial activism to challenge the will of the people. One of the most liberal states in America isn’t ready to have gays marry, and worry about the true threat that their children will be indoctrinated into accepting this lifestyle. The ACLU want to force them to accept it.
The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. 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. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to 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. 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.
“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. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us,” said Jenny Pizer, a staff attorney with Lambda Legal. “That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.”
“A major purpose of the constitution is to protect minorities from majorities. 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,” added Elizabeth Gill, a staff attorney with the ACLU of Northern California.
The groups filed the lawsuit today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday’s election but would like to be able to marry now.
Legaleze expert Eugene Volokh, no enemy of the ACLU, after much research makes a convincing case that the ACLU argument lies in the balance of the question of whether proposition 8 was a “revision’ or an “amendment” and concludes that it is an “amendment” to the constitution. Under the California Constitution, the initiative can be used for “amendments” but not “revisions”.
Another problem the ACLU may run into…CA Supreme Court already rejected the “revision” argument.
Meeting in closed session, the court denied a petition calling for the removal of the initiative, Proposition 8, on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters.
Professor Bainbridge has an excellent post on this topic as well.
» Filed Under ACLU, Activist Judges, Bill Of Rights, Homosexual Agenda, Moral Relativism, News, Representative Government, Social Engineering
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6 Responses to “ACLU File Lawsuit Challenging Proposition 8, Should It Pass”
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I totally approve the ACLU’s actions on this issue. One important constitutional duty of the judiciary is to protect the rights of minorities. Otherwise, mob rule ensues. Unless you gay or love a gay person you would most likely not understand or agree.
“Until you walk a mile in a man’s shoes…”
This is twice that the people of California have, not by mob rule, but by voting, said, this is the moral limit, live within it. To state that it is someones right, infers they had it to begin with.
If they believe they have a case for gay marriage, take it back to the ballot box, convince the people of California that their rights have been slandered. Constitutional amendments can be reversed. But, they wont do that, they will whine, they will protest and they will demand a judge make their lives better. Hopefully the supreme court, which I am not counting on, will uphold this addition to the constitution of California.
I’m really concerned as to how legal propositions that go all the way through the public voter system can be taken to court as unfair, or whatever. It seems to me that this issue though stressful, is a closed issue once voted over and turned into a law.
What we need to do is attack the education code 51890…’(D) Family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood’. This is the REASON
that PROP 8 is using. In other words we need to overturn this, so NO MARRAGE IS DISCUSSED, STRAIGHT OR GAY. What excuse will they use if this education code is changed?
EDUCASTION CODE IS AGAINST MY CIVAL AND CONSTITUTIONAL RIGHTS OF EXPRESSION OF RELIGION. We want to force PROP 8 to ADMIT IT IS A RELIGIOUS argument….
The courts did not reject the petition, the simply refused to hear the case at that time. Now they will have to.
It’s simple, what the voters did in California and what the courts will and should do, is the same when voters passed a ban on interracial marriage.
Voters have never voted to protect minority rights. The right to vote for non-whites, women, own property, and the end segregation were all granted by goverment intervetion or court action.
When segregation was struck down, the majority threatened the lives of so called activist judges. Judges have always been been a target when it comes to the guarantee of human rights.
Also, despite what some may claim, the California Constititon makes a clear distinction between a revision and an admendment. They are not inter-changable words.
Defenders of gay marriage rights have been shot down TWICE in California. Just let it go. Quit crying about it.