Prop 8 Amicus Brief Challenges 99-Year-Old Calif. Initiative Process

Amanda Bronstad

The National Law Journal

An appellate attorney in Oakland, Calif., has filed a brief before the 9th U.S. Circuit Court of Appeals, arguing that California's same-sex marriage ban should be found invalid because the state's entire ballot initiative process was improperly voted into law 99 years ago.

Jon B. Eisenberg, a partner at Eisenberg & Hancock, filed the amicus brief on Oct. 25 before the 9th Circuit, where supporters of Proposition 8 have moved to overturn a recent decision by U.S. District Judge Vaughn Walker finding that the initiative, which passed in 2008 by 52 percent of California voters, violates the federal constitutional rights of gays and lesbians.

The brief is the first legal challenge to California's initiative process. Eisenberg said he is asking the 9th Circuit to certify the question for the California Supreme Court to review.

"The question we're raising in this case is whether or not the creation of the process, the initiative process, adhered to California law," he said. "That would seem to be an issue for the California Supreme Court to decide."

California's initiative process was passed by both houses of the state legislature and was voted into law as "Senate Amendment 22" by the people of California in 1911, according to Eisenberg's brief, written by Laura Brill, founding partner of Kendall Brill & Klieger in Los Angeles. But the process should have been put into law as a "revision," rather than an "amendment," to California's constitution, the brief says. A revision would have required a supermajority of both houses of the legislature and a constitutional convention.

Instead, the initiative process has transformed California "from a republican form of government into a direct democracy, which the Chief Justice of California describes as 'dysfunctional,'" the brief says, citing California Supreme Court Justice Ronald M. George's public criticism last year of the state's referendum process. "A simple majority of voters overturned the California Supreme Court's earlier decision that the California Constitution protected gay men and lesbians with respect to the right to marry."

Eisenberg has been involved in other litigation affecting homosexuals. In one case, Strauss v. Horton, the California Supreme Court ruled in 2009 that Proposition 8 was properly characterized as an "amendment," rather than a "revision" of the state's constitution.

Eisenberg said the Supreme Court's decision prompted him to file the recent brief because it made clear that a change in the fundamental structure of the state's government should be done by revision, not amendment.

"With the benefit of Strauss v. Horton, it would appear the creation of the initiative process itself was flawed," he said.

Daniel Lowenstein, a professor of election law at the University of California at Los Angeles School of Law, agreed that the brief represents the first known challenge of its kind to California's initiative process. But he said the argument faces considerable hurdles, especially since the U.S. Supreme Court in 1912 found in a similar case, Pacific States Tel. & Tel. Co. v. Oregon, that the issue of whether the referendum process runs counter to a republic form of government belongs before the legislature or the president, not the courts.

Further, the California Supreme Court, which has recognized the initiative process in decisions spanning decades, is unlikely to find the argument persuasive, Lowenstein said. "The prospects of the Supreme Court ruling that the initiative is a revision after it's been in effect for 99 years are somewhat between nil and zero," he said. "This is really nonsense."

Several other legal groups filed amicus briefs this week in the Proposition 8 case: The Bay Area Lawyers for Individual Freedom; a group of professors of family law in California; Howard University School of Law Civil Rights Clinic; the National LGBT Bar Association; the NAACP Legal Defense and Education Fund Inc.; a group of professors specializing in constitutional law and civil procedure; the Southern Poverty Law Center; the ACLU Foundation of Northern California and Lambda Legal Defense and Education Fund Inc. (joint brief); the Asian American Justice Center; the law firm of Chapman Popik & White along with Suzanne B. Goldberg, a law professor and director of the Sexuality & Gender Law Clinic at Columbia Law School (joint brief); and the Northern California chapter of the Academy of Matrimonial Lawyers.