The Latest News on the Prop 8 Legal Challenge

Proposition 8 Challenged
Constitutional Change Would Not Apply to
Existing Marriages

California Attorney General Jerry Brown agrees that the marriages of an estimated 18,000 same-sex couples between June 16, 2008 and the possible passage of Proposition 8 are still valid in the state of California and must continue to be honored by the state.

There is nothing in the language of Prop. 8 that suggests the initiative could apply to couples who have already legally married. Lambda Legal is committed to seeing that all couples married in California continue to receive legal protections and have their marriages respected as required under California law.

Lambda Legal, The American Civil Liberties Union (ACLU) and the National Center for Lesbian Rights (NCLR) have urged the California Supreme Court to invalidate Proposition 8 if it passes. The groups argue that Prop. 8 is invalid because it was improperly attempts to undo the constitution's core commitment to equality and deprives the courts of their essential role of protecting the rights of minorities. According to the California Constitution, such a radical change in the way the courts and state government work cannot be decided by a simple ballot measure. The legal groups filed the writ petition on behalf of Equality California and six same-sex couples.

The California Constitution makes clear that a major change in the roles played by the different branches of government cannot be made by a simple majority vote through the initiative process, but at the very least must first go through the state legislature. Changes to the underlying principles of the constitution must be approved by two-thirds of both houses of the legislature before going to voters. That didn't happen with Proposition 8, and that's why it's invalid.

The groups filed a writ petition in the California Supreme Court before the elections, arguing that the initiative should not have appeared on the ballot. The court dismissed that petition without addressing its merits.

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court struck down an initiative that would have improperly attempted to strip the state's courts of their role as independent interpreters of the constitution.

“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,” says Lambda Legal Senior Counsel Jenny Pizer. “Proposition 8 suffers from the same flaw. That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.”