Reply #6: Amicus Brief filed by the San Francisco Bar Association.... [View All]

[AntiFascist]

Legal Aid Society - Employment Law Center, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and the Impact Fund echo the above arguments with these points:

http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/letter-support-s168047-3.pdf

There is no meaningful difference between permitting a majority of the State's voter to pass an initiative that denies equal protection of the law to a class of individuals with respect to a fundamental right, and permitting voters to remove the eqaul protection guarantee from the Constitution altogether...Creating "exceptions" to this guarantee renders it meaningless-not only for gay and lesbian individuals, but for everyone.....

Prop. 8 would also substantially alter California's preexisting constitutional scheme in two other important aspects. Prop 8 would radically change the definition of a "fundamental right" as one enjoyed by all individuals to one enjoyed by some, as decided by the majority of voters. And Prop. 8 would strip the courts of their ability to enforce the guarantee of equal protection with respect to a fundamental right belonging to a protected class. This encroachment on the courts' role offends the core principle of separation of powers that is embedded in our State's Constitution.

I. Prop 8 Would Eviscerate the Constitutional Guarantee of Equal Protection

There can be no doubt that an initiative that sought to repeal the Constitution's equal protection guarantee entirely would be deemed a "revison" of the Constitution and could not be enacted by a simple majority vote. Yet there is not conceptual difference between such a measure and one that denies equal protection to a class of individuals with respect to a fundamental right.

...Respondents may argue that the people should be permitted to define the scope of the Constitution's equal protection clause, just as the voters were able to define the scope of the prohibition on cruel and unusual punishment and reinstate the death penalty in People v. Frierson. But the proposition at issue in Frierson did not target a suspect classification or terminate a fundamental right, nor did it eliminate the prohibition on cruel and unusual punishment....Equality is not such a malleable concept. The right of gay and lesbian individuals to equal protection is not dependent on society's increasing acceptance of them. And no reasonable interpretation or Prop. 8 can deny that it treats gay and lesbian individuals differently, and less equally than others, by denying them the fundamental right to marry the person they love. Because the core promise of the equal protection guarantee is that all individuals will be treated the same, creating an exception for a particular minority group makes illusory the equal protection clause for all of us.

It is further argued that to suggest that the federal consitution's equal protection clause will somehow fill the hole Prop. 8 makes in the State Constitution's guarantee of equal protection..."The California Consitution is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism but also the historic bases of state charters." For example, the State Constitution examines certain classifications under the lens of strict scrutiny that are accorded only intermediate scrutiny in federal equal protection analysis.

II. Proposition 8 Would Alter Radically the Consitutional Principle that Fundamental Rights Must Be Guaranteed to All Individuals

<It would be nice if they could anticipate the argument of the Respondents that gays lesbians are still afforded the right to marry members of the opposite sex.>

III. Prop. 8 Would Substantially Alter the State Constitutional Scheme, Which Provides that the Judiciary is the Final Arbiter of the Constitutional Guarantees of Equal Protection and Fundamental Rights

One of the most 'fundamental" protections is the courts' authority to "preserve constitutional rights, whether of individual or minority, from obliteration by the majority"...It is the Court's duty to consider whether classifications offend the equal protection clause of the California Constitution. Where a classsification involves a "'suspect classification' or touches on 'fundamental interests'...courts adopt an attitude of active and critical analysis, subjecting the classifications to strict scrutiny."...

...In Raven, this Court held that a proposition was a revision where it would have removed from the judiciary the right to construe the Constitution in criminal cases with respect to certain rights....The Court found that the amendment was a "broad attack on state court authority to exercise independent judgement" in construing rights guaranteed under the State Constitution. As such, the Proposition was an invalid revision, and could not be enacted by popular vote.

...By stripping the courts of the authority to interpret and enforce the Constitution's guarantee of equal protection and fundamental rights, Prop. 8 alters the balance of powers between the branches of government required by the Constitution.