Calif. Supreme Court Asked To Kill Anti-Gay Proposed Amendment
by The Associated Press Posted: June 23, 2008 - 6:00 am ET
(San Francisco, California) Gay rights advocates have asked California's highest court to keep off the November ballot a citizens' initiative that would again ban same-sex marriage.
Lawyers for Equality California filed a petition Friday arguing that the proposed amendment to the California Constitution should be invalidated because its impact was not made clear to the millions of voters who signed petitions to qualify the measure before the state Supreme Court legalized same-sex unions.
"This court has recognized that gay and lesbian couples have a fundamental right to marry and, as of June 16, such couples have been getting married across the state," the petition states.
"Rather than effecting 'no change' in existing California law, the proposed initiative would dramatically change existing law by taking that fundamental right away and inscribing discrimination based on a suspect classification into our state Constitution."
The petition also claims the so-called California Marriage Protection Act should be disqualified because it would revise, rather than amend, the state Constitution by altering its fundamental guarantee of equality for all - in essence writing a law the state high court has already found unconstitutional into the constitution.
"If enacted, it would alter the underlying principles on which the California Constitution is based and make far-reaching changes in the nature of our basic government plan, by severely compromising the core constitutional principle of equal citizenship (and) ... by destroying the courts' quintessential power and role of protecting minorities," it states.
Unlike a constitutional amendment that can be approved by voters, a constitutional revision requires convening a Constitutional convention or the appointment of a commission to recommend changes to the Legislature and voters, according to the petition submitted by same-sex marriage supporters.
"For good reason, there's a strict process for making revisions to our Constitution, and it's more involved than simply collecting petition signatures," said attorney Stephen Bomse in a statement posted on the Web site of the National Center for Lesbian Rights, another petitioner in the case.
"That process is in place to safeguard our basic form of government, especially the most basic principle of equal protection of the laws."
The petition names Secretary of State Debra Bowen and the measure's sponsors, a coalition of religious and social conservative groups called ProtectMarriage.com, as defendants.
Since Bowen's office already has certified the amendment for the fall election, a spokeswoman says she can remove it only through a court order.
"She has a ministerial duty to certify any initiative when they qualify through the petition process, and she can't remove an initiative without a judge's order," said Kate Folmar, a spokeswoman for the secretary of state.
The last time the state Supreme Court was asked to decide if a proposition should remain on the ballot was 2005, when it did so twice. In both decisions, the propositions were allowed to stay on the special election ballot.
In both 2005 cases, the state Supreme Court overturned lower courts who had taken the propositions off the ballot. The propositions were a redistricting initiative backed by Gov. Arnold Schwarzenegger and another that would have re-regulated the state's electricity market.
The Arizona-based Alliance Defense Fund, which represents the measure's sponsors, called the petition a desperate move it would fight.
"This is just another attempt to force a radical political agenda upon the people of California," said Defense Fund senior counsel Glen Lavy. "The opponents of marriage are willing to use any means necessary to impose their will."

I had a feeling something like this would happen. It should be interesting to see how it plays out. This ballot measure may never see the light of day. In the meantime, thousands of California Same Sex Couples are getting married and even if a ballot measure passes (which is highly doubtful), since there is no precedent here, I believe an entirely new law must need to be drafted to deal with those who are already married.

This thing may end up in SCOTUS sooner than we think, and there is really no telling how this court could rule in such a case.

That's what gets me about this amendment. It should be declared illegal from the start based on the Supreme Court decision. And I'm not surprised that the people who got the signatures misrepresented what the measure really was.

Indeed. The Chief Justice has alread proven that he was not the robot that Bush was hoping to put into SCOTUS. He's in for life, so he's not bound to the "party line" any more.

Kinda hard to deem the measure "illegal" when several states already have highly restrictive amendments already voted on and passed that have withstood legal challenges.

But we are talking about CA here, where banning gay marriage has ALREADY been declared unconstitutional. So what sense would it make to allow a vote on something that is ALREADY illegal in the state? That would be like holding a vote on whether to make murder legal or not.

Yes, with that, if you are a gay couple in California wishing to get married; you best do it before November.

A form of murder already IS legal in the form of abortion. I guess it depends on how you frame you argument. Considering the fluidity of legal thinking, and the less than unanimous decision, the amendment should stand.

Every legal case depends on how the argument is framed.

I think gay marriage is going to be around past the election. I predict that the ban measure won't even be on the ballot in November, since it is voting for something that SC in CA has already rejected as unconstitutional and most of the signatures for it were gained under fallacious pretenses.