SAN FRANCISCO—The fight over same-sex marriage in California appears increasingly likely to result in a courtroom showdown, with the state's attorney general filing a brief yesterday asking the state Supreme Court to review the legal status of Proposition 8, the ballot initiative banning gay marriage. Since the initiative passed two weeks ago with 52 percent of the vote, supporters of the ban have argued that the majority has ruled and that the court should throw out any legal challenges.
But in his brief, Jerry Brown, the state's attorney general, says the matter requires the attention of the court, agreeing with the petitioners in three lawsuits filed immediately after the election that the state is facing a constitutional crisis. "The petitions raise issues of statewide importance, implicating not only California's marriage laws but also the initiative process and the Constitution itself," Brown's brief says. "It is appropriate for this court to address these issues to provide certainty and finality in this matter." Brown asked the court not to put the same-sex marriage ban on hold while it deliberates, arguing that such a move would only cause "uncertainty."
Even before Proposition 8 went to a vote, legal experts across California worried that its passage would tie state law in knots—and now, two weeks after Election Day, the constitutional mess is readily apparent. Earlier this year, the state Supreme Court declared a law with wording similar to Prop 8's unconstitutional, saying gays and lesbians had a fundamental right to marry and that denying them that right violated the state's equal-protection laws. When Prop 8 passed, though, it eliminated those same rights by amending the Constitution with a simple majority vote.
Supporters of same-sex marriage have pointed out that if a majority eliminated the right of Catholics or Latinos to marry, for example—two other constitutionally protected groups—there would be no question about the initiative's illegality. "There's something deeply wrong with putting the rights of a minority up to a majority vote," said Evan Wolfson, a gay-rights lawyer and executive director of Freedom to Marry. "If this were being done to almost any other minority, people would see how un-American this is."
In several lawsuits filed the next day, a group of same-sex couples argued that Prop 8 made such drastic changes to the law that it should not be viewed simply as a constitutional amendment. Instead, the couples say, it should be considered a constitutional "revision," which requires a two-thirds vote of the state legislature before it can appear on the ballot. If the court agrees, the initiative could be declared invalid and same-sex marriage could be restored.
Forty-four state legislators, meanwhile, have signed a brief filed in support of the petitioners, urging the court to overturn Prop 8. The California state legislature has twice passed laws legalizing same-sex marriage, only to see Gov. Arnold Schwarzenegger veto them. Schwarzenegger, who refused to sign the bills while the Supreme Court was considering the matter, now says he supports same-sex marriage. "The court's role in the constitutional structure is not only 'to say what the law is' but also to preserve these rights from obliteration by the majority," the legislators' brief said. "The California Constitution does not authorize such a sweeping denial of rights by mere amendment."
Dennis Herrera, the city attorney of San Francisco, who has also filed a brief in support of the petitioners, said in a statement that advocates on both sides can see eye to eye on at least one thing. "There appears to be universal agreement that the legal stakes have now escalated far beyond marriage equality alone," said Herrera. "Prop 8's passage has pushed California to the brink of a constitutional crisis. No amendment has ever stripped a fundamental right from a protected class of citizens. If allowed to stand, Prop 8 would so devastate the principle of equal protection that it could endanger the fundamental rights of any potential electoral minority . . . . It would mean that a bare majority of voters could enshrine any manner of discrimination against any unpopular group, and our state Constitution would be powerless to stop it."