Breaking news: City attorney says Prop 8 cases go beyond marriage
by Matthew S. Bajko
San Francisco City Attorney Dennis Herrera applauded the state Supreme Court for its decision Wednesday to hear lawsuits questioning the constitutionality of Proposition 8, the anti-gay marriage amendment voters passed by a simple majority November 4.
The legal dispute, however, goes beyond the issue of marriage rights for same-sex couples, insisted Herrera at a news conference following the court's order requesting briefing in the matter.
"This is no simple rematch," of the initial court cases seeking to overturn the state's anti-gay marriage statutes, said Herrera. "The principles are far more important than marriage. The passage of Prop 8 pushed California to the brink of a constitutional crisis."
Lawyers representing the LGBT community, government entities, religious groups and minority legal organizations have all filed lawsuits asking the court to throw out Prop 8 as unconstitutional. The cases all argue that because Prop 8 discriminates against a minority group it cannot be enacted through a simple majority vote. Rather, the lawsuits contend that Prop 8 is a revision to the state constitution, and therefore, can only be placed on the ballot by a two-thirds vote of the Legislature or through a constitutional convention.
Herrera argued that the stripping of rights from a protected minority class of citizens "upended" a separation of powers doctrine that has been rooted in the state's government for centuries. He said the implications should Prop 8 stand extend far wider than just for the LGBT community.
"It would endanger the rights of any protected class of minorities," said Herrera.
Santa Clara County Counsel Ann Ravel, who joined Herrera at the press conference, also stressed that the cases now before the court will profoundly impact all Californians.
"It is a very significant issue facing the court. They will decide a question that goes to the very foundation of our democracy. It will impact every city and county of our state," said Ravel. "A majority of voters can't undercut the court's role in protecting minorities in our society."
Only six of the seven members on the court signed onto the order accepting the lawsuits, with oral arguments expected to be heard as early as March. Justice Joyce Kennard, who had sided with the 4-3 majority ruling in May allowing gay and lesbian couples to wed, did not join in this week's decision.
Instead, Kennard said she would have denied the petitions "without prejudice" to the filing with the Supreme Court "of an appropriate action" to determine the legality of those marriages that took place prior to the adoption of Prop 8. The court has asked for briefings on the matter and is expected to rule on the validity of the 18,000 same-sex marriages that occurred in California.
Surprisingly, the three justices who dissented in the original case, Justices Ming W. Chin, Marvin R. Baxter, and Carol A. Corrigan, all signed onto the order this week.
Justice Carlos R. Moreno was the only member of the court who would have granted a stay of the implementation of Prop 8 until after the court ruled in the matter.
Herrera said while he is "confident in the strength" of the cities' legal arguments, he deferred from predicting how the court would rule in the case. He said the dearth of cases dealing with the revision versus change question makes it all the more difficult to gauge how the court will decide.
Ravel said if Prop 8 is "not a revision" of the constitution, then it would be "hard to imagine" any other case that would qualify as being such a drastic overhaul.
Herrera did express a note of confidence that the marriages already performed would be found to be valid, in accordance with the opinion of state Attorney General Jerry Brown. He said the court asked for briefing on the question in expectation that someone would eventually file a lawsuit attacking the marriages.
"It recognizes this is an important issue that needs to be dealt with," Herrera said, adding that the court's ruling would bring "certainty and finality" to the question.
Both Herrera and Ravel dismissed speculation that the judges' reasoning in the case would be influenced by their having to go before voters in the coming years to be re-affirmed to their seats on the court.
"This court has a long and proud history of being judicious. It makes decisions based on interpretations of the law," said Herrera. "Chief Justice [Ronald] George is a champion of keeping an independent judiciary."
Ravel agreed, adding that George "is a person who will only make a decision based on the facts and evidence before him. This court is not going to be cowed by political pressure. They will do the right thing, no question."
Herrera's office has moved aggressively to bring other cities and counties from around the state, including areas where the majority of voters backed Prop 8, on board with its litigation. Over the last two weeks, the counties of Alameda, Los Angeles, Marin, San Mateo and Santa Cruz, as well as the cities of Oakland, Fremont, Laguna Beach, and San Diego have moved to side with San Francisco and Santa Clara counties in the lawsuit.
All told, the litigation has united 12 cities and counties comprising more than 17 million Californians. Several of the counties, such as Alameda and Los Angeles, opted not to join the initial lawsuit San Francisco brought in 2004 that successfully overturned the state's anti-gay marriage laws.
"This is the one place where all cities and counties can rally around," said Ravel.