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12/8/2008 10:03:18 AM EST

Wed-locked-out? What's Next?

By Jennifer C. Pizer, Senior Counsel, Lambda Legal

Posted by Jennifer Pizer

After the heartbreaking election-day passage of Proposition 8, far-flung spontaneous protests, and a flurry of action in the courts, many understandably are confused about what comes next on the marriage equality front in California.

At 9 am on Wednesday, November 5th, while the ballots were still being counted, the LGBT community’s lawyers at Lambda Legal, the National Center for Lesbian Rights, and the American Civil Liberties Union were on the California Supreme Court’s steps to file a legal challenge. We renewed arguments we had made last summer about why the measure was so defective it never should have gone to the voters at all. Because the court declined to hear the arguments before the election, we renewed them right after the vote. Later that day, the City and County of San Francisco, the City of Los Angeles and Santa Clara County filed a second suit. They have been joined by Los Angeles County and seven other municipalities, and the impressive list is growing. Los Angeles community activists Robin Tyler and Diane Olsen filed a third suit as well, making similar arguments.

All of the suits challenging Prop 8 argue that the measure was not enacted through the correct process. California’s Constitution has different processes for different kinds of changes. Many changes are considered “amendments,” which may be pursued through the initiative process. That process requires signatures on petitions and then a simple majority vote at a general election. Changes to core constitutional principles or that alter the way branches of government interact are considered “revisions.” Revisions must be pursued through a more deliberative process that first requires a two-thirds vote of both houses of the Legislature (like the annual state budget), and then a majority vote of the public or a constitutional convention.

The lawsuits all argue that taking the precious constitutional right to marry away from gay and lesbian couples revises the Constitution because doing so defeats the core principal that everyone must be equal under the law. The fatal problem with Prop 8 is that it creates a subordinate, minority class of Californians by a mere majority vote. If an initiative is allowed to do that, it nullifies the Constitution’s structural check on the power of a tyrannical majority by preventing the courts from doing their job, which is to protect minority rights by enforcing the equality guarantee. We argue that, because Prop 8 revises rather than amends the Constitution, the wrong process was used and it is invalid.

We can see the immensity of the constitutional stakes in the fact that three more lawsuits have been filed reinforcing our argument. Leading civil rights groups like the NAACP, the Mexican American Legal Defense and Educational Fund, the Asian Pacific American Legal Center, and the California Women’s Law Center have filed two cases. And religious groups filed another, highlighting that religious minorities also will be vulnerable to abusive majority votes if Prop 8 is upheld as merely an amendment.

On Wednesday, November 19, the Supreme Court granted our request that the justices hear and resolve this important matter promptly. The court posed questions about Prop 8’s validity and about its potential effect on marriages same-sex couples celebrated before the election. In a press release, the Court said oral arguments could be heard as soon as March, which means a decision is possible by summer, though it may well take longer.

However long this litigation takes, we all must continue to show California and the entire country why our families matter, and why everyone must be equal and have the same rights under law. As we lawyers continue to make the case in court, everyone in our glorious community of friends and allies should continue to march, to talk to neighbors, relatives and co-workers, to write letters to the editor, and never to forget how far we have come in an amazingly short time. Prop 8 has been a painful, unacceptable affront to family equality. Yes, it has set us back a bit. But it does not diminish our resolve and it will not stop the affirming tide of history.

Jennifer C. Pizer is Senior Counsel for Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and people with HIV. Based in Lambda's Western Regional Office in Los Angeles, Pizer has handled cases to advance domestic partner protections and the rights of lesbian and gay parents, and to end sexual orientation discrimination in employment, education, health care and housing. Pizer also is a leading voice for ending marriage discrimination against lesbian and gay couples and currently serves as co-counsel for 15 same-sex couples, Equality California, and Our Family Coalition in the California Marriage cases.

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