Lawyers for same-sex couples argue that the anti-gay marriage measure is an illegal constitutional revision. Backers of the After losing at the polls, gay rights supporters filed three lawsuits Wednesday asking the California Supreme Court to overturn Proposition 8, an effort the measure's supporters called an attempt to subvert the will of voters.
Lawyers for same-sex couples argued that the anti-gay-marriage measure was an illegal constitutional revision -- not a more limited amendment, as backers maintained -- because it fundamentally altered the guarantee of equal protection. A constitutional revision, unlike an amendment, must be approved by the Legislature before going to voters.
The state high court has twice before struck down ballot measures as illegal constitutional revisions, but those initiatives involved "a broader scope of changes," said former California Supreme Court Justice Joseph Grodin, who publicly opposed Proposition 8 and was part of an earlier legal challenge to it. The court has suggested that a revision may be distinguished from an amendment by the breadth and the nature of the change, Grodin said
"The magnitude here is that you are effectively rendering equal protection a nullity if a simple majority can so easily carve an exception into it," she said. "Equal protection is supposed to prevent the targeting and subjugation of a minority group by a simple majority vote."
All the lawsuits cited the constitutional revision argument, and two of them asked the court to block Proposition 8 from taking effect while the legal cases were pending.
A California Supreme Court spokeswoman said the court would act "as quickly as possible" on the challenges.
Other lawsuits could follow, but gay rights groups have called on supporters not to file cases in federal court. They fear that a loss at the U.S. Supreme Court could set back the marriage movement decades.
The California Supreme Court voted 4 to 3 on May 15 that a state ban on same-sex marriage was unconstitutional. The ruling also elevated sexual orientation to the constitutional status of race and gender, an elevation that provides strong legal protection from discrimination.
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