PSA: ACLU, Other Groups File Suit Against Proposition 8

by matttbastard

ACLU/Lambda/NCLR press release:

Legal Groups File Lawsuit Challenging Proposition 8, Should It Pass (11/5/2008)

Legal Papers Claim Initiative Procedure Cannot Be Used To Undermine the Constitution’s Core Commitment To Equality For Everyone

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

SAN FRANCISCO – 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.

The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.

“Historically, courts are reluctant to get involved in disputes if they can avoid doing so,” said Shannon Minter, Legal Director of NCLR. “It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Proposition 8 may pass, the courts will have to weigh in and we believe they will agree that Proposition 8 should never have been on the ballot in the first place.”

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.

In a statement issued earlier today, the groups stated their conviction, which is shared by the California Attorney General, that the state must continue to honor the marriages of the 18,000 lesbian and gay couples who have already married in California. A copy of the statement as well as the writ petition filed today is available at: www.aclu.org/lgbt, www.lambdalegal.org, and www.nclrights.org.

In addition to the ACLU, Lambda Legal and NCLR, the legal team bringing the writ also includes the Law Office of David C. Codell; Munger Tolles & Olson, LLP; and Orrick, Herrington & Sutcliffe, LLP.

h/t DKos (by way of pale via IM).

More from Digby (h/t Paul the Spud) , Faith @ Shakesville, Ta-Nehisi Coates (h/t Sebastian) Amp, Mandolin, The Girl Detective, Jeff Fecke, Thomas @ Feministe, VivirLatino, Kyle @ Right Wing Watch, Bil Browning, Darkrose and Pam Spaulding

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“In Solidarity For Equality”

Via Marti Abernathey: Donna Rose – the first and only openly transgender member of the Board of Directors of the Human Rights Campaign; national co-chair for Diversity; co-chair appointee-elect for the Business Council.

Donna Rose – Choosing solidarity for equality:

I hereby submit my resignation from my post on the Board of the Human Rights Campaign effective Monday Oct. 8, 2007. I call on other like-minded board members, steering committee leaders, donors, corporate sponsors, and volunteers to think long and hard about whether this organization still stands for your values and to take decisive action as well. More than simply a question of organization policy, this is a test of principle and integrity and although it pains me greatly to see what has happened it is clear to me that there can only be one path. Character is not for compromise. I cannot align myself with an organization that I can’t trust to stand-up for all of us. More than that, I cannot give half-hearted support to an organization that has now chosen to forsake the tenets that have guided my efforts from day one.

To quote Populuxe in ObWi comments, “trans people were on the front lines of the fight for queer rights first. Abandoning them now is like pissing on Sylvia Rivera‘s grave.”

Related: Barney Frank responds to Lambda Legal’s analysis of the SPLENDA bill:

“…the one change that is made substantively from the old bill to the new one that I reintroduced is to drop gender identity.” No words have been added or subtracted that make it easier to fire a gay man because of some effort to transform homophobia into dislike of effeminacy and I believe the law continues to be a strong bulwark against that.

Well, isn’t that a relief – it’s only transpeople who’re getting fucked over by the cowards in Congress. That certainly changes everything *exhales*. Tracy Baim doesn’t think much of Frank’s perversion of pragmatism:

Rep. Frank’s rationale for these maneuvers sounds good on paper, but does not represent the reality for our community. We cannot ever justify exclusion as a course of action. To sever a significant part of our community would be wrong. If it takes losing “T” to get our rights, none of us should want those rights.

Speaking of spineless CongressCritters, Jerame Davis calls out three Democratic holdouts on the inclusive ENDA bill:

Baron Hill of Indiana’s 9th District, Joe Donnelly of Indiana’s 2nd District, and Brad Ellsworth of Indiana’s 8th District are three of the House Democrats holding out on HB 2015, the original – and trans-inclusive – ENDA legislation.

[…]

What the hell? Every time there is a queer issue that gets shot down, one or more of these three Indiana Democrats have their name attached to the controversy. And it’s usually not on the side of inclusion, equality, or progressive values.

Indiana residents click through to find contact information for each Representative.

Also: 24 hrs after stabbing its transgender constituency in the back, HRC tries to staunch the bleeding; Rebecca Juro continues her righteous assault on Joe and Co:

Proven liars, proven sellouts, proven panderers to the unreasonable fears of cowardly politicians, the Human Rights Campaign can no longer be credibly considered community leaders by anyone in our community who truly believes that we are, in fact, one community, and that this community defines political success as succeeding together, leaving no one behind.

More on HRC’s latest maneuver (and Barney Frank’s bullshit) from Pam Spaulding (make sure to read the comments; eastsidekate= pure WIN: “Barney Frank supports the right of Barney Frank to not be discriminated against for being Barney Frank. How generous.”)

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