The Progressive


A project of Common Dreams

For Immediate Release

National Center for Lesbian Right:
Lambda Legal:

New Filing in Prop 8 Legal Challenge

Reply brief reiterates that Prop 8 should be struck down


Today, the National Center for Lesbian Rights (NCLR), the
American Civil Liberties Union (ACLU), and Lambda Legal filed a reply
brief in the California Supreme Court, the next step in the lawsuit
seeking to overturn Proposition 8, which passed by a mere 52 percent on
November 4.

The brief argues that Proposition 8 is
invalid because it seeks to eliminate a fundamental right only for a
targeted minority, which cannot be done through the initiative process.
The brief also agrees with California Attorney General Jerry Brown that
certain fundamental rights, including the right to marry, are
inalienable and can not be put up for a popular vote. The brief also
argues --again in agreement with the Attorney General -- that Proposition
8 cannot be applied to invalidate existing marriages because new laws
and amendments are presumed to apply only on a prospective basis.

"If Prop 8 is permitted to stand, it would be the first time an
initiative has successfully been used to change the California
Constitution to take away an existing right only from a historically
targeted minority group," said NCLR Legal Director Shannon Minter.
"Such a change would defeat the very purpose of a constitution and
fundamentally alter the role of the courts in protecting minority

On November 19, 2008, the California Supreme Court granted review in
the legal challenges to Proposition 8, and established an expedited
briefing schedule, under which briefing will be completed in January
2009, with amicus curiae or "friend-of-the-court" briefs due on January
15. Oral argument potentially could be held as early as March 2009.

Elizabeth Gill, a staff attorney with the ACLU, added "Prop 8 is a
radical and unprecedented change to the California Constitution that
puts all Californians at risk. It actually mandates government
discrimination against a minority."

In May of 2008, the California Supreme Court held that laws that treat
people differently based on their sexual orientation violate the equal
protection clause of the California Constitution and that same-sex
couples have the same fundamental right to marry as other Californians.
Proposition 8 would completely eliminate this fundamental right only
for same-sex couples. No other initiative has ever successfully changed
the California Constitution to take away a right only from a targeted
minority group.

"Prop 8 is not valid and never has been," said Jennifer Pizer, Lambda
Legal National Marriage Project Director. "California's Equal
Protection clause was not written in sand, to be erased by shifting
political tides. It's a solid guarantee that we all have the same
rights and it's the foundation of our government. Exceptions can't be
carved by simple majority vote or the equality guarantee becomes a
discrimination guarantee. No initiative can cause such a profound
change in our legal system."

NCLR, Lambda Legal, and the ACLU filed this challenge on November 5,
representing Equality California, whose members include many same-sex
couples who married between June 16 and November 4, 2008, and six
same-sex couples who want to marry in California. The California
Supreme Court has also agreed to hear two other challenges filed on the
same day: one filed by the City and County of San Francisco (joined by
Santa Clara County and the City of Los Angeles, and subsequently by Los
Angeles County and other local governments); and another filed by a
private attorney. These three cases are jointly under review by the
California Supreme Court.

Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU
are the Law Office of David C. Codell, Munger, Tolles & Olson LLP,
and Orrick, Herrington & Sutcliffe LLP.

For more information on this case, go to:


National Center for Lesbian Rights is a national legal organization
committed to advancing the civil and human rights of lesbian, gay,
bisexual, and transgender people and their families through litigation,
public policy advocacy, and public education.

Lambda Legal is a national organization committed to achieving full
recognition of the civil rights of lesbians, gay men, bisexuals,
transgender people and those with HIV through impact litigation,
education and public policy work.

The American Civil Liberties Union is America's foremost advocate of
individual rights. It fights discrimination and moves public opinion on
LGBT rights through the courts, legislatures and public education.

works to achieve equality and secure legal protections for LGBT people.
To improve the lives of LGBT Californians, EQCA sponsors legislation
and coordinates efforts to ensure its passage, lobbies legislators and
other policy makers, builds coalitions, develops community strength and
empowers individuals and other organizations to engage in the political