Society

Fight Continues as Groups Try to Make Prop 8 Invalid

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Latest in Legal Challenge: Three Activist Groups File Brief Saying Prop 8 Should be Struck Down; Proponent Answers Back

San Francisco (January 5, 2009) --- Prop 8 should be ruled "invalid" because it "seeks to eliminate a fundamental right only for a targeted minority," say three prominent groups who filed a reply brief in the California Supreme Court Monday.

Written by the National Center for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), and Lambda Legal, yesterday's action represents the next step in a lawsuit hoping to overturn a proposition that has grabbed national headlines and produced fierce debate across the country.

Proposition 8 passed by 52 to 48 percent on November 4. Before its passage, some 18,000 same-sex couples married across California.

The brief argues that eliminating a fundamental right only for a targeted minority cannot be done through the initiative process. The brief says it agrees with Calif. Attorney General Jerry Brown that certain fundamental rights, including the right to marry, are inalienable and can not be put up for a popular vote.

"If Prop 8 is permitted to stand, it would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only from a historically targeted minority group," said NCLR Legal Director Shannon Minter.
 
Meanwhile, the lead proponent for Prop 8 -- ProtectMarriage.com, Yes on 8 -- says Brown's reasoning is flawed. In a legal argument filed with the Supreme Court on Monday, the group said: "With all respect, the Attorney General has invented an entirely new theory, grounded in ringing principles of natural law and natural rights, but utterly without foundation in this Court's case law."

As far as a timeline of events, the California Supreme Court granted review in the legal challenges to Proposition 8 on Nov. 19, 2008, and established an expedited briefing schedule, under which briefing will be completed in January 2009, with amicus curiae or "friend-of-the-court" briefs due on January 15. Oral argument potentially could be held as early as March 2009.

"Prop 8 is not valid and never has been," said Jennifer Pizer, Lambda Legal National Marriage Project Director. "Even if it were, those 18,000 couples would still be married...Exceptions can't be carved by simple majority vote or the equality guarantee becomes a discrimination guarantee. No initiative can cause such a profound change in our legal system."

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