Reply brief reiterates that Prop 8 should be struck down

(San Francisco, CA, January 5, 2008)—Today, the National Center for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), and Lambda Legal filed a reply brief in the California Supreme Court, the next step in the lawsuit seeking to overturn Proposition 8, which passed by a mere 52 percent on November 4.

The brief argues that Proposition 8 is invalid because it seeks to eliminate a fundamental right only for a targeted minority, which cannot be done through the initiative process. The brief also agrees with California 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. The brief also argues —again in agreement with the Attorney General — that Proposition 8 cannot be applied to invalidate existing marriages because new laws and amendments are presumed to apply only on a prospective basis.

“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. “Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.”

On November 19, 2008, the California Supreme Court granted review in the legal challenges to Proposition 8, 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.

Elizabeth Gill, a staff attorney with the ACLU, added “Prop 8 is a radical and unprecedented change to the California Constitution that puts all Californians at risk. It actually mandates government discrimination against a minority.”

In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians. Proposition 8 would completely eliminate this fundamental right 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.

“Prop 8 is not valid and never has been,” said Jennifer Pizer, Lambda Legal National Marriage Project Director. “California’s Equal Protection clause was not written in sand, to be erased by shifting political tides. It’s a solid guarantee that we all have the same rights and it’s the foundation of our government. 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.”

NCLR, Lambda Legal, and the ACLU filed this challenge on November 5, representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney. These three cases are jointly under review by the California Supreme Court.

Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.

Read more about the Prop 8 legal challenge

Read the reply brief (pdf)

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. NCLR is lead counsel in In re Marriage Cases. https://www.nclrights.org/

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work. http://www.lambdalegal.org/

The American Civil Liberties Union is America’s foremost advocate of individual rights. It fights discrimination and moves public opinion on LGBTQ rights through the courts, legislatures and public education. http://www.aclu.org/

Equality California Founded in 1998, Equality California celebrates its 10th anniversary in 2008, commemorating a decade of building a state of equality in California. EQCA is a nonprofit, nonpartisan, grassroots-based, statewide advocacy organization whose mission is to achieve equality and civil rights of all lesbian, gay, bisexual and transgender (LGBT) Californians. http://www.eqca.org/