AU, Allied Groups Ask Calif. Supreme Court To Nullify Proposition 8

Ban On Same-Sex Marriage Violates Core Freedoms, Coalition Asserts

Americans United for Separation of Church and State has joined a legal brief asking the California Supreme Court to nullify Proposition 8, a November ballot measure that banned same-sex marriage in the state.

The friend-of-the-court brief, filed today by Americans United, the Anti-Defamation League and 30 other civil rights and civil liberties groups, argues that a bare majority of voters should not be permitted to remove fundamental rights from a minority group.

 “Prop. 8 was conceived, funded and promoted by the Religious Right with the aim of eviscerating the rights of others, and it should not be allowed to stand,” said the Rev. Barry W. Lynn, executive director of Americans United. “Allowing powerful religious groups to take away minority rights by referenda is fundamentally at odds with what America is about.”

The brief asserts that minority rights cannot be subjected to a vote via the referendum process. Under the terms of the California Constitution, fundamental changes to the state’s governing document may be made only through a deliberative process that begins in the legislature. Because Prop. 8 undercuts the Constitution's mandate of equal rights for all, it effects a radical revision that cannot be made through a simple referendum.

The brief observes, “If Proposition 8 can strip fundamental rights from gay and lesbian people by a 52 percent majority, future amendments can strip away fundamental rights from other disfavored groups based on race, national origin, gender or religion.”

Continues the brief, “If Proposition 8 were a proper subject for an initiative vote, then so would be a measure seeking to amend the California Constitution to bar interracial or interfaith marriages, to exclude women from certain occupations, to limit freedom of speech only for certain racial or national groups, or to suspend protections against unwarranted searches and seizures for members of certain national groups. As this Court and its federal counterpart have recognized, no person should have such fundamental rights even one of them subject to the vicissitudes of a bare majority of voters.”

Prop. 8 passed with 52 percent of the vote Nov. 4. The initiative was heavily funded and promoted by Religious Right groups and the Roman Catholic hierarchy. The Church of Jesus Christ of Latter-day Saints (Mormons) urged its members to support the referendum, resulting in $20 million in donations.

Fundamentalist Protestant, Catholic and Mormon leaders want civil law to reflect their doctrines on marriage.

Opponents of Prop. 8 charge that supporters misled the public with inflammatory ads asserting that same-sex marriage would lead to mandatory education about homosexuality in public schools and force houses of worship to perform same-sex marriages.

The case, Strauss v. Horton, is pending before the California Supreme Court and is being closely watched.

The brief was drafted by Clifford S. Davidson, part of a team of Proskauer Rose LLP attorneys, with input from Americans United Legal Director Ayesha N. Khan, AU Assistant Legal Director Richard Katskee and AU Madison Fellow Elizabeth Stevens.

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.