Legal groups and three city attorneys asked the California Supreme Court on Wednesday to invalidate Proposition 8, arguing that the voter-approved ban on gay marriage is a constitutional revision that should have been processed through the Legislature, not the ballot box.
The lawsuit throws the hot-potato issue of same-sex unions back to the high court just six months after four justices infuriated social conservatives by declaring that marriage rights extend equally to both gay and straight couples. And it snares Chief Justice Ronald George, author of the majority opinion in In re Marriage Cases, in a political vise as his scheduled 2010 retention election approaches.
"It's the proverbial crocodile in the bathtub," said Gerald Uelmen, a professor at Santa Clara University School of Law. "And that's what initiative politics frequently do in California. They put the court in the position of striking down measures that have a popular majority, and very often the proponents of the initiatives that are struck down come after the courts in the next election."
Prop 8, which says that "only marriage between a man and a woman is valid and recognized in California," continued to hold a small but healthy lead in the statewide ballot count Wednesday with 52.5 percent of the vote. An estimated 2 million to 3 million absentee and provisional ballots must still be counted.
"It is clearly a very close election, and we monitored the results all evening and this morning," No on 8 leaders Geoff Kors and Kate Kendell said in a prepared statement Wednesday. "As of this point, the election is too close to call."
But supporters of the measure had already declared victory late Tuesday night and called on opponents to drop their lawsuit plans.
"We think that the vote of the people should be respected," said Frank Schubert, campaign director for Yes on 8.
The election results open a Pandora's Box of legal questions related to the constitution and contract law as well as issues of due process and equal protection. Among them: What happens to the estimated 18,000 same-sex couples who were married between June 17 and Nov. 4?
"I don't think it's completely clear," said William Araiza, a professor at Loyola Law School in Los Angeles. Araiza, who married his partner in October, wasn't even sure what the status of his own union was on Wednesday.
"If we walk into a government office and we ask for some benefit that would be accorded married couples, the bureaucrat would probably have to say 'I can't do that because that would be recognizing the validity of same-sex marriage,'" Araiza said. "At least that's how I read the language of the initiative."
But Attorney General Jerry Brown said Wednesday that his office will defend the validity of any same-sex marriages that "were not only lawful but a fundamental constitutional right" in California before Tuesday's election.
Prop 8 "did not say the measure was retroactive," Brown said.
Initiative supporters don't even agree among themselves on the status of married gay couples. Attorneys with the conservative Alliance Defense Fund said in a statement Wednesday that such marriages are now "in legal limbo." But Randy Thomasson, president of the Campaign for Children and Families, said in a press release that "the false marriages done this summer must be declared null and void."
Lawyers representing Equality California and six same-sex couples now barred from marrying filed an extraordinary writ petition Wednesday morning asking the Supreme Court to block enactment of Prop 8. Attorneys for the cities of San Francisco and Los Angeles and Santa Clara County filed a similar suit (.pdf) shortly afterward. Both groups argue that the 14-word initiative so fundamentally alters the constitution that it amounts to a whole-scale revision, not a more limited amendment. Constitutional revisions must start in the state Legislature. Prop 8 was placed on the ballot through a citizen petition drive.
"A major purpose of the constitution is to protect minorities from majorities," Elizabeth Gill, a staff attorney with the ACLU of Northern California said in a prepared statement. "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."
Prop 8 opponents employed the same argument this summer in petitioning the Supreme Court to keep the initiative off the ballot. The court denied the petition without explanation.
The Supreme Court did cite revision problems in 1990 when it struck down Proposition 115, which would have stripped criminal defendants of certain state constitutional rights. But Uelmen said it would be "a stretch" for the court to find such a problem with Prop 8.
"The court has construed the meaning of revision as having a broad impact," he said. "Here you just have a one-sentence amendment to the constitution … I don't think that's going to fly."
Brown agreed with that reasoning and said that, while he voted against Prop 8, his office will defend the initiative in court.
But in the latest lawsuits, Brown and the Yes on 8 proponents will have to deal with a legal hurdle erected by George and the three concurring justices. In In re Marriage Cases, the majority declared gays and lesbians a suspect class, subjecting potential restrictions of their rights to a strict scrutiny standard. That's left some legal scholars wondering how the court could leave Prop 8 in place.
"One option for the court would be to say, the way to harmonize Prop 8 and the equal protection clause of California's constitution is, if you're going to take away marriage rights for one group, you've got to take it away from everyone," Araiza said.
But eliminating state-sanctioned marriage entirely doesn't seem like a politically palatable possibility, the professor said. More likely, the court might construe Prop 8 as a "narrow exception … an asterisk" to the equal protection clause, Araiza said.
"Politically, I think that's where a court would probably go," he said.
The court does not have a deadline to act on the writs but typically moves quickly with extraordinary requests.
George was presiding over oral arguments in Sacramento on Wednesday and, noting the filing of the petitions, declined through an aide to comment on the election results.
George last stood for retention in 1998, a year after he angered some conservatives with a ruling striking down a state law requiring minors to obtain parental consent for abortion. When social conservatives announced a campaign to unseat him, George raised several hundred thousand dollars and enlisted former Gov. George Deukmejian and Sen. Dianne Feinstein to co-chair his retention campaign. Significant opposition never materialized, and he won another 12-year term by a comfortable margin.