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Prop 8 Trial Judge Is Gay; Should This Matter?
Today City Attorney Dennis Herrera today, along with Los Angeles City Attorney Rocky Delgadillo and Santa Clara County Counsel Anne C. Ravel, filed "a petition for a writ of mandate with the California Supreme Court to invalidate Proposition 8, an initiative constitutional amendment that intends to strip gay and lesbian citizens of their fundamental right to marry in California."
That is to say, it's on. In Herrera's own words:
The issue before the court today is of far greater consequence than marriage equality alone ... Equal protection of the laws is not merely the cornerstone of the California Constitution, it is what separates constitutional democracy from mob rule tyranny. If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority -- even for protected classes based on race, religion, national origin and gender. The proponents of Prop 8 waged a ruthless campaign of falsehood and fear, funded by millions of dollars from out-of-state interest groups. Make no mistake that their success in California has dramatically raised the stakes. What began as a struggle for marriage equality is today a fight for equality itself. I am confident that our high court will again demonstrate its principled independence in recognizing this danger, and in reasserting our constitution's promise of equality under the law.
Looks like it's going to be a long battle ahead of us. Stay tuned. (To read the press release in its entirety, follow the jump.)
CITY ATTORNEY DENNIS HERRERA NEWS RELEASE FOR IMMEDIATE RELEASE: WEDNESDAY, NOV. 5, 2008 CONTACT: MATT DORSEY (415) XXX-XXXX
Herrera Joined by Los Angeles, Santa Clara
Counterparts in Suing to Invalidate Prop 8Leader of S.F.'s original constitutional challenge says amendment
'if allowed to stand...devastates the principle of equal protection'SAN FRANCISCO (Nov. 5, 2008) –- City Attorney Dennis Herrera today joined Los Angeles City Attorney Rocky Delgadillo and Santa Clara County Counsel Anne C. Ravel in filing a petition for a writ of mandate with the California Supreme Court to invalidate Proposition 8, an initiative constitutional amendment that intends to strip gay and lesbian citizens of their fundamental right to marry in California. The 28-page suit filed with the high court in San Francisco this afternoon argues that the California Constitution's equal protection provisions do not allow a bare majority of voters to use the amendment process to divest politically disfavored groups of constitutional rights. Such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment, the petition argues. Article XVIII of the California Constitution provides that a constitutional revision may only be accomplished by a constitutional convention and popular ratification, or by legislative submission to the electorate.
Today's civil action by city and county governments follows a similar action filed earlier in the day by the National Center for Lesbian Rights on behalf of same-sex couples. Herrera pledged to lead an aggressive effort to enlist additional support in the civil litigation from other California cities and counties.
"The issue before the court today is of far greater consequence than marriage equality alone," Herrera said. "Equal protection of the laws is not merely the cornerstone of the California Constitution, it is what separates constitutional democracy from mob rule tyranny. If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority -- even for protected classes based on race, religion, national origin and gender. The proponents of Prop 8 waged a ruthless campaign of falsehood and fear, funded by millions of dollars from out-of-state interest groups. Make no mistake that their success in California has dramatically raised the stakes. What began as a struggle for marriage equality is today a fight for equality itself. I am confident that our high court will again demonstrate its principled independence in recognizing this danger, and in reasserting our constitution's promise of equality under the law."
Herrera represented the City and County of San Francisco as a lead plaintiff in the original legal challenge that resulted in the landmark state Supreme Court decision earlier this year recognizing marriage as a fundamental right guaranteed to all Californians, "whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples." More than simply toppling a marriage exclusion that discriminated against millions of gay men and lesbians, the high court's May 15, 2008 ruling established gays and lesbians as a suspect class under the California Constitution's equal protection clause, including it among protected classes subject to a standard of strict scrutiny for judicial review.
The City and County of San Francisco was the first government entity in American history ever to sue for marriage equality, asserting in its March 2004 constitutional challenge a broad societal interest to strike down the marriage exclusion in California statutes. By the time the marriage cases were finally decided by the state high court more than four years later, fully twenty-one California cities and counties had joined San Francisco in support of marriage equality for same-sex partners. In total, some 7 of the state's 8 largest cities united for the successful effort: Los Angeles, San Diego, San Jose, San Francisco, Long Beach, Sacramento and Oakland. Herrera has pledged a similar effort in the lawsuit filed today by San Francisco, Santa Clara County and the City of Los Angeles to enlist additional support and participation from other California cities and counties.
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Can't they do something about the fact that the Mormons have clearly crossed the church-state line on this one? Not only are they sticking their nose in the affairs of an whole other state that they don't even live in, but they are going against a core principle of the Constitution. What would happen if a foreign country tried to influence our constitutional laws like that?
The IRS could find that the LDS Church is illegally using tax exempt contributions to fund political activity, but this would not have any effect on the validity of the measure.
HANG IN THERE!!! Chances are those who were stupid enough to vote yes on 8 are ALSO going to be stupid enough to think this is permanently set in stone. OMG theyre SOOO kidding themselves. You call 52 per cent "California speaking" I mean... 70 per cent of under 25 voted NO... and you have like 49 per cent of california DISGUSTED... and thats just the polls of it.... In the worst case... if all the legal motions being brough on now fail... this will be RE-Balloted in 5 to 10 years and since then all these old hags will have died off and the younguns taken over... This will be turned around THEYRE NOT getting away with this tyranny and bad prop.
Go team! Something tells me they've been preparing this lawsuit for a while, just in case 8 passed.
One way or another, this law won't stand for long.
That is a great argument for why this should have been done in the first place in the legislature, not the courts. Why didn't we think of that before? Now it's just a giant clusterfuck.
I never thought I would say this, but thank god for lawyers, huh?
Is it just me, or does Dennis Herrera have beautiful eyes?
@Mark
and that is exactly why they did it. to create a long term clusterfuck. it could take years of time, money and energy to reverse this travesty.
Mormons are right up there now with that other cult Scientology - in my book.
Yeah, who would thank god for lawyers, what with all their fighting for civil rights, taking dangerous products out of the stream of commerce (Ford Pinto, anyone), putting murderers and child rapists away, and keeping innocent people out of jail.
What bastards.
mark925, they did try to do it in the legislature -- twice, in 2003 and 2005. Schwarzenegger vetoed both bills, his position being that under the CA Constitution, the issue should be decided not by legislative action, but by the court or a vote of the people. Make of that what you will, but it guarantees that the legislative route is closed off so long as Arnold is in office.
Wow. At first glance it looked like this was just a desperate attempt to stave off the inevitable but it looks like the suit may actually have a legal leg to stand on.
Either way, I bet that a new amendment is put on the ballot and passed that repeals yesterdays atrocity before this one gets out of the courts.
Save Marriage, repeal prop 8!
Cheers,
Greg
Sorry: the legislation was /vetoed/ in 2005 and 2007. The legislation was originally drafted in 2003. My bad.
A court battle over the meaning of "revision" vs. "amendment" should be exciting.
Saddened that Prop 8 won ... but hopeful we've learned our lessons. Lesson 1 - there are a lot of gays in the United States who could likely match even the $30,000 per household donations of some of the better off Yes on 8 folks. The campaign really missed the bus on rolling out a donor call across the country, in my humble opinion. Hope!
Well, if Californians had gotten off their asses and voted no (only half of San Franciscans even voted), we could have skipped this third act bullshit drama ...
Oh ... and what the hell happened in Los Angeles to the No on 8 campaign? Sorry ... I'm trying to hold back.
Also, if Prop 8 gets repealed by a judge then we can expect at least a decade of howling about judicial activism and legislating from the bench from the religious crowd. I suppose the outrage might at least distract them from issues that really matter.
F*** Propositions! What a horrible way to govern. Really allows for the tyranny of majority.
Unbelievable that Californians care more about chickens having the "right" to stand up in cages before they eat them than they do about their friends and neighbors having the right to marry the one they love.
Quite a number of people I've talked to said that they experienced a lot of people that were confused by the proposition's title. They voted yes because they thought voting yes was in favor of gay marriage. It wasn't clear it was to BAN gay marriage.
Say what you want about "were they living under a rock?" but sufficed to say not everyone is either so technologically inclined or media proficient to have been sufficiently exposed to clear messaging to make an informed decision.
@travin: I have heard this discussed elsewhere today, including one person who said "I don't look for the explanations, just the numbers and letters of things I want to vote on," and that can lead to disaster. Even with some out of state friends there was some clarification needed that "no" was a good vote and "yes" was a not-good vote (from my persective, anyway).
Even with absolutely no interest in politics, anyone in the bay area who could look at a ballot and not automatically think of the phrase "No on 8" had to have spent the last month blindfolded or living in a cave. Did they think San Francisco is completely filled with opponents of gay marriage?
I was correcting friends yesterday morning about 8. A lot of them also thought Yes on 8 was the pro-gay marriage stance.
withak: that's true, but the thing is that the coverage probably wasn't as widespread in more rural counties, and they may well have been confused by the wording. that being said, i'm sure people get confused by the wording of propositions all the time; further, i don't think the wording was particularly confusing this time around, but it's possible we lost/gained a few votes because of it.
@bluecanary: for all the good one lawyer does, there are another 10 acting as ambulance chasers, corporate raiders, high profile 'celebrity' defenders, those writing the patriot act and the validation for guantanamo, etc. so while you're right, i think you can see where karulee was going with his/her comment.
Actually, now that I think about it, I talked to at least one person yesterday who had a odd reaction when I mentioned voting against prop 8. If he was under the impression that a "yes" vote was in favor of keeping gay marriage legal then his reaction would make a lot more sense.
I am now totally depressed about the intelligence of the rest of humanity. :-/
Candlelit Vigil, 6:30 pm, City Hall.
withak: The howling about "judicial activism" won't be going away any time soon, whether or not this is repealed by a court. If memory serves, that particular trope has existed at least since the Supreme Court struck down school segregation in 1954, and became a regular feature with Roe v. Wade onwards. Whatever the ultimate results of judicial review in this case, I doubt they'd change that dynamic by much.
I wonder, could california residents have voted to return to segregation? there has to be limits to what is even allowed to be voted on, right?
withak, folks don't need to be blindfolded or living in a cave. It's just their experience and exposure to these things are different from yours. You don't have to understand it, just accept that there are alternate ways to think and live a life that doesn't resemble yours. And that neither is right or wrong, just different.
It's impossible for us to be a cohesive, informed and cooperative republic if we require everyone to think like us else something is wrong with them and they need be ignored. The challenge is finding ways to clearly communicate with those that are different from us and include them in the dialog rather than excluding them because they're "wrong." Collectively we must move away from such separatist and exclusive thinking or we'll end up right back in this crappy place we now find ourselves.
A vote to return to racial segregation would undoubtedly be found by the US Supreme Court to violate the Equal Protection Clause and would be thrown out.
One can imagine a similar thing happening with this vote, but I wouldn't hold my breath.
@periqueblend
I assume not, as that would violate the US constitution. I think the court ruling that legalized gay marriage was based on the California constitution, which is what prop 8 changed. Someone else here might have a better understanding.
Seriously? A candlelight vigil? That just frames us as victims. We should be demanding our rights back, not whimpering that they ought be returned to us out of pity. We ought to be nailing bills to church doors, informing them that their tax-exempt status has been revoked. We ought to be calling for reform of the proposition system that allows a simple majority to repeal the rights of others. We ought to be exposing the hypocrisy of the Yes on 8 campaign's practices of violence and intimidation. A candlelight vigil is just the type of flaccid San Francisco response that our opponents count on.
And as for all your friends who voted yes on 8 by accident: A) they deserve to be painted as fools for not reading the question they were voting on, and B) they reveal a savage flaw in the proposition process. My only hope is that a sufficient number of gay marriage opponents voted "no" by mistake.
I agree, a candle-lit vigil is straight out of the hippy handbook.
If you think a candlelight vigil is weak, you're not paying attention.
Of course, because all those candle-lit vigils stopped the war in Iraq, or the murders in Oakland, didn't they? It's a lame reaction by people who seem to have lost the ability to think original thoughts.
mark925: They didn't challenge it before the election, because the Cal SC was unlikely to hear the case until after the election anyways. They have to this day never heard a case on a proposition until after it has passed. It is just practicality. But rest assured, the City was expecting they'd have to file if this happened, and they already knew what they would be arguing. That said, the amendment vs. revision-of-the-constitution argument, could be weak depending on how the justices view it. Technically the revision argument applies more to procedural elements of the constitution. But.. if they can convince the Court that equal rights as a whole are threatened and that is a revision, they may sway enough votes.
What a mess Gavin created.
Good on him. Personally, I think ANY changes to the constitution should require a bonafide mandate plus legislative action. This is the state's constitution, not a freakin' shopping list.
Dear Beth Spotswood,
Yes Dennis has lovely eyes thanks to two coats of mascara ;)
@periqueblend & mark925
periqueblend's point is exactly what the city of SF is asking the state supreme court to consider. What is the limit to the initiative process? Does a bare majority of the California electorate have the authority to change the state constitution to eviscerate the state's equal protection clause - which is a fundamental tenant of our common law heritage that reaches back, arguably, to the Magna Carta and beyond.
As largo1 points out, I have no idea how the court will rule on this, as it's (thankfully) a unique question that has not been presented to the court so starkly before. My gut tells me they won't agree with the city, but if nothing else this should move the legislature to propose an amendment to deal with this issue in the future. Prop 8 is a travesty.
And no, we can't expect the US constitution to bail us out. Unfortunately the working assumption is that the Roberts court would use such a case to create a Plessy v. Ferguson-esque ruling on gay marriage. Cynical, but probably accurate.
My gay Unitarian minister is, like me, a big opponent of Prop 8. It is fine for religious leaders to take a stand on propositions. The problem comes when religious leaders tell people in their congregation who to vote for. Churches also can't use church funds to support political causes. Unfortunately, if it is found that church funds were used for Prop 8, it will not automatically invalidate the proposition, but it might fuel the fight against it. Any laws against basic rights should not stand. It is my HOPE that justice will prevail.
Ya know...I had no idea that the Mormons donated so much $$$ to the cause until you idiots mentioned it...Had I not seen commercial 1 about this, I would have voted yes on it....I actually read things before I vote on them...Your cause has lost...TWICE now....If you don't like it then move to a state where the majority of the voters are OK with your sexual preferences and lifestyle...In effect, "boycott" California...Leave it...Go away...Again...You've lost TWICE now....Get the message, live with it and stay or make the ultimate defiance gesture and leave California...