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gay_marriage_largeNovember 28, 2008

By Rady Ananda

On Thanksgiving Eve, the California Supreme Court agreed to hear several legal challenges to Proposition 8, the ballot initiative to end marriage for same-sex couples in California. On November 5th, the ACLU, the National Center for Lesbian Rights, and Lambda Legal legally challenged the validity of Proposition 8 in the California Supreme Court on behalf of six couples and Equality California.

The cities of San Francisco and Los Angeles, along with the counties of Los Angeles and Santa Clara, filed a similar challenge, as did a private attorney in Los Angeles.  ACLU reports that since the three lawsuits submitted on November 5th, three other lawsuits challenging Proposition 8 have been filed including petitions filed by the California Council of Churches, leading African American, Latino and Asian American groups, and two prominent California women’s rights organizations.

The National Center for Lesbian Rights (NCLR), founded 31 years ago, “was born out of a belief that we could do the impossible,” explains Executive Director Kate Kendell. 

In this video, founders Roberta Achtenberg and Donna Hitchens provide much of the history behind the NCLR, which initially focused exclusively on parental rights for lesbians.  Eventually, the focus expanded to include marital rights for all. Their most famous case – one that garnered international attention – won the guardianship of Sharon Kowalski by her lover, Karen Thompson, after Kowalski suffered brain injuries from a drunk driver and her biological family refused visitation to Thompson. 

[youtube http://www.youtube.com/watch?v=20fkzCgHLyI&hl=en&fs=1&%5D

NCLR hasn’t stopped, despite their historic victory in May when the California Supreme Court granted same-sex couples the right to marry.  In describing the November 5th Writ, NCLR explains:

“The petition argues that the California Supreme Court should strike down Proposition 8 because it makes such a significant change to the core underlying principle of equal protection and is therefore a revision, not a mere amendment of the California Constitution.

“The principle of equal protection protecting minority groups from oppression by the majority is central to our constitution and our democratic system of government. Proposition 8 would limit that fundamental principle of equal protection for LGBT Californians and undermines the very purpose of equal protection.”

Many bloggers have been covering Prop 8: Deb Della Pinia names the orgs that violated their 501(c)(3) status by contributing funds to the political contest over equal protection in California, in her blistering piece, The greatest civil rights battle of our generation.  Amy Bernstein concludes in Why Same Sex Marriage Rights Are Inevitable:

“Whatever the court decides, there should be no doubt as to the ultimate outcome for the issue across the board: Equal rights for gay Americans — including the right to marry and adopt children — will become the law of the land, whether on a painstaking state-by-state basis, or by the sweep of federal law.  And not only will these rights be granted, they will widely be taken for granted, as well.” 

Her logic for this conclusion is inescapable.  Targeting a specific minority for exclusion from the equal protection clause of the U.S. Constitution eventually results in victorious protections for the class.  Given Wednesday’s ruling in Florida overturning the gay adoption ban, and the California Supreme Court ruling in May, the LGBT community has reason to hope our day in the sun is near.

The ACLU reports that no initiative has ever successfully changed the California Constitution to take away a right from a targeted minority group.  “Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.  According to the California Constitution, such a serious revision of the state constitution cannot be enacted through a simple majority vote but must first be approved by two-thirds of the legislature.”

A copy of the ACLU-NCLR-Lamba Legal Writ Petition can be found here.  The five other Petition Writs can be found here.  In addition to the ACLU, Lambda Legal and NCLR, the legal team bringing the writ also includes the Law Office of David C. Codell; Munger Tolles & Olson, LLP; and Orrick, Herrington & Sutcliffe, LLP.

In related news, see Florida Gay Adoption Ban Ruled ‘Not Rational.