Is too close to call. We're down by 5% with nearly half the vote counted.
I don't know what the next step will be. I've heard from many that the contingency plans for losing this include immediate and long-term legal challenges. I don't know enough to know on what grounds, and what the likelihood of success will be.
I do know that disappointed does not begin to describe how I feel about having to wonder if my rights will be rolled back by referendum. What a majority of Supreme Court justices giveth, low-information, easily manipulated, mean spirited culture warrior voters may taketh away. It wasn't right in the 19th century, and it isn't right today.
Nor does it begin to descirbe how I feel about those who took the opportunity to get married not to raise money or consciousness around this issue, but to register for expensive gifts, as if the battle were won.
But no matter what result we wake up to tomorrow, there are so many people that I know who contributed in large ways to pushing this struggle forward: from plaintiffs in the original lawsuit, to those who phoned, knocked on doors, or held signs at polling places and braved the ugly, threatening heterosexism that still exists even in the Bay Area; from those who used their weddings as an opportunity to raise money to fight this back, to those single men and women who threw their first fundraisers just by asking their friends to give to an important cause; to my many friends and family members who contributed from outside the state. Win or lose tomorrow, doesn't end here.
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This is so frustrating. I am not sure myself, but immediate legal challenges might take the form of equal protection suits in federal court. Interestingly, I think that universal marriage rights proponents could now bring federal suits for equal protection. Because the State of CA previously recognized the right to marry as universal, the fact that the right was now taken away on the basis of sexual orientation strengthens the discrimination claim. Of course, thus far federal courts have only applied a "rational basis" scrutiny to sexual orientation discrimination. It was on that basis that the NY Court of Appeals found no constitutional problems with denying marriage licenses to same sex couples. But now this looks different, and this may have been the strategy of the Secretary of State who worded the Proposition to clearly state that a yes vote removes an existing right. This is now a stronger equal protection claim.
Let's hope we don't even have to go there right now. Let's hope that the count goes the way of equality.
NCLR, Lambda Legal, the ACLU, and Equality California have filed suit:
Legal Papers Claim Initiative Procedure Cannot Be Used To Undermine the
Constitution’s Core Commitment To Equality For Everyone
SAN FRANCISCO – The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. The petition charges that Proposition 8 is invalid 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. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.
The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn’t happen with Proposition 8, and that’s why it’s invalid.
“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. 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,” said Jenny Pizer, a staff attorney with Lambda Legal. “That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.”
“A major purpose of the constitution is to protect minorities from majorities. 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,” added Elizabeth Gill, a staff attorney with the ACLU of Northern California.
The lawsuit was filed today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday’s election but would like to be able to marry now.
The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.
“Historically, courts are reluctant to get involved in disputes if they can avoid doing so,” said Shannon Minter, Legal Director of NCLR. “It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Prop 8 may pass, the courts will have to weigh in and we believe they will agree that Prop 8 should never have been on the ballot in the first place.”
This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.
In a statement issued earlier today, the groups stated their conviction, which is shared by the California Attorney General, that the state will continue to honor the marriages of the 18,000 lesbian and gay couples who have already married in California. A copy of the statement as well as the writ petition filed today is available a www.aclu.org/lgbt, www.lambdalegal.org, and www.nclrights.org.
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.
###
The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. www.nclrights.org
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work. www.lambdalegal.org
The American Civil Liberties Union is America’s foremost advocate of individual rights. It fights discrimination and moves public opinion on LGBT rights through the courts, legislatures and public education. www.aclu.org
Founded in 1998, Equality California celebrates its 10th anniversary in 2008, commemorating a decade of building a state of equality in California. EQCA is a nonprofit, nonpartisan, grassroots-based, statewide advocacy organization whose mission is to achieve equality and civil rights of all lesbian, gay, bisexual and transgender (LGBT) Californians. www.eqca.org
OH--and there appear to be 3 million absentee and provisional ballots still to be counted, according to the Secy of State. The margin at the moment is only 400,000.
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