Prop. 8 opponents file three lawsuits

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After losing at the polls, gay rights supporters filed three lawsuits Wednesday asking the California Supreme Court to overturn Proposition 8, an effort the measure’s supporters called an attempt to subvert the will of voters.

“If they want to legalize gay marriage, what they should do is bring an initiative themselves and ask the people to approve it,” said Frank Schubert, co-chairman of the Proposition 8 campaign. “But they don’t. They go behind the people’s back to the courts and try and force an agenda on the rest of society.”

Lawyers for same-sex couples argued that the anti-gay-marriage measure was an illegal constitutional revision — not a more limited amendment, as backers maintained — because it fundamentally altered the guarantee of equal protection. A constitutional revision, unlike an amendment, must be approved by the Legislature before going to voters.

The state high court has twice before struck down ballot measures as illegal constitutional revisions, but those initiatives involved “a broader scope of changes,” said former California Supreme Court Justice Joseph Grodin, who publicly opposed Proposition 8 and was part of an earlier legal challenge to it. The court has suggested that a revision may be distinguished from an amendment by the breadth and the nature of the change, Grodin said

Still, Grodin said, he believes that the challenge has legal merit, though he declined to make any predictions. Santa Clara University law professor Gerald Uelmen called the case “a stretch.”

UC Irvine Law School Dean Erwin Chemerinsky said his research found too little case law on constitutional revisions to predict how the state high court might resolve the question.

“There is very little law about what can be done by amendment as opposed to revision,” he said.

Jennifer Pizer, a staff lawyer for Lambda Legal, said the initiative met the test of a revision because it had far-reaching magnitude.

“The magnitude here is that you are effectively rendering equal protection a nullity if a simple majority can so easily carve an exception into it,” she said. “Equal protection is supposed to prevent the targeting and subjugation of a minority group by a simple majority vote.”

Read the full story from the Los Angeles Times.

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