Same Fight, Different Approach

By Julie Bolcer

Originally published on Advocate.com January 13 2009 12:00 AM ET

When millions of
Californians voted on Proposition 8 in November, they
were not asked to explain their choice to support or oppose
the initiative to ban same-sex marriage. But for three
lawsuits pending against Prop. 8 in the state supreme
court, reasons are of vital importance, especially in
a venue where numerous arguments compete with each
other.

“It’s not at all uncommon in a case of this
constitutional magnitude that you’ll have many
different briefs with many different reasons,” says
Joel Paul, professor of law at the University of
California Hastings College of the Law. “Each
of these different theories might appeal to different
people on the court, and hopefully someone will be able to
put together a majority.”

During the
expedited briefing schedule established by the court, Atty.
Gen. Jerry Brown raised eyebrows when he filed a brief on
December 19 that declared marriage rights to be
“inalienable.” As the state’s chief
law enforcement officer, he had announced earlier that he
would defend Prop. 8 against challenges, although he
personally opposed the initiative.

However, in the
surprise statement that accompanied his 111-page brief,
Brown said, “Proposition 8 must be invalidated
because the amendment process cannot be used to
extinguish fundamental constitutional rights without
compelling justification.”

He argued that
marriage was such a right, as the high court held in its
May decision, and therefore Prop. 8 was a denial of the
basic liberty guaranteed in the state constitution.
Brown also urged that marriages entered into between
June 16 and November 4 remain valid, regardless of the
fate of Prop. 8.

“It’s kind of a natural law argument,”
says Jerry Uelmen, a professor at Santa Clara
University School of Law who follows the California supreme
court. “He’s saying that the right to marry
finds its basis beyond the constitution.”

While Prop. 8
opponents agree with this part of his argument, they
diverge with Brown on another key point, specifically, his
belief that Prop. 8 is an amendment to the state
constitution and not a revision targeting gays and
lesbians, a suspect class of people.

“Prop. 8
is not really an amendment,” says attorney Gloria
Allred, who represents two same-sex couples, including
comedian Robin Tyler and her wife, Diane Olson.
“It is such a far-reaching change to the state
constitution, to the fundamental plan, and to the
foundational powers, that they didn’t follow
the correct procedure for doing it. It should be
struck down for that reason alone.”

On this
procedural point, outlined in a reply brief to Brown filed
on January 5, the petitioners contend that amendments
are small changes to the constitution, in comparison
to more radical revisions, which require approval by
the state legislature before they can be presented to the
electorate or a constitutional convention.

Allred expresses
profound disagreement with Brown on his conclusion that
Prop. 8 is an amendment.

“This
could be fatal to the case, if the court were to decide that
they had followed the proper procedure,” she
says. “Then Prop. 8 could win.”

The high court is
hearing two other challenges to Prop. 8, one on behalf
of Equality California and six same-sex couples who would
like to marry, and another from the city and county of
San Francisco, joined by other local governments.
While they all disagree with Brown on the revision
question, their reply briefs indicate potential areas of
complement with his own.

“When you
boil it down, his argument also focused on the other concern
that the petitioners have, which is using the amendment
process to deny a fundamental right to a particular
group,” says Shannon Minter, legal director of
the National Center for Lesbian Rights, which along with the
American Civil Liberties Union, Lambda Legal, and a private
law firm, is representing Equality California in
its suit. “All the arguments focus on the
shocking thing that Prop. 8 does, which is take away a
fundamental right from a particular group.”

Although the
supreme court could hear oral arguments in the case as early
as March, no date is guaranteed. In fact, the only sure
thing about this latest chapter of Prop. 8 seems to be
the infinite capacity for uncertainty.

“It’s impossible to say how the supreme court
is going to look at this,” says Uelmen.
“There are seven justices on the court, and each
looks at the constitution through a different
prism.”