Wednesday November 5th, the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a petition with the California Supreme Court asking the justices to nullify Proposition 8 “because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group — lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities.”
“If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution,” said Jenny Pizer, senior counsel with Lambda Legal. “Proposition 8 suffers from the same flaw — it removes a protected constitutional right — here, the right to marry — not from all Californians, but just from one group of us. That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.”
Proponents of Proposition 8 were quick to react. The move, said attorneys for the Alliance Defense Fund, “demonstrates the contempt such groups have for the will of the people.”
“This lawsuit is a brazen attempt to gut the democratic process,” said ADF senior counsel Glen Lavy. “The people of California have spoken yet again, but that doesn’t mean anything to radical groups that want to impose their will at all costs . Once again, they are attempting to use the courts to push their agenda since they can’t achieve it legitimately at the ballot box.”
I think it’s called “The Tyranny Of The Majority”.
The National Law Journal details the pressure put on California’s Supreme Court to among other things, determine whether the proposition amounts to a constitutional revision or simply an amendment.
“A major purpose of the constitution is to protect minorities from majorities,” Elizabeth Gill, a staff attorney with the ACLU of Northern California said in a prepared statement. “Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the Legislature can initiate such revisions to the constitution.”
“It’s the proverbial crocodile in the bathtub,” said Gerald Uelmen, a professor at Santa Clara University School of Law. “And that’s what initiative politics frequently do in California. They put the court in the position of striking down measures that have a popular majority, and very often the proponents of the initiatives that are struck down come after the courts in the next election.”