Politics

Gay Rights Advocates Seek To Stop Marriage Measure

SAN FRANCISCO (CBS 5 / AP / BCN) ― Gay rights advocates asked California's highest court late Friday to keep a citizens' initiative that would again ban same-sex marriage off the November ballot.

The ballot measure would amend the state constitution to require that "only marriage between a man and a woman is valid or recognized in
California." It would overturn the state Supreme Court's May 15 ruling that the constitution's guarantees of equal treatment and privacy provide a right to same-sex marriage.

Lawyers for San Francisco-based Equality California filed Friday's suit, arguing that the proposed amendment should be invalidated because its impact was not made clear to the millions of voters who signed petitions to qualify the measure before the Supreme Court legalized same-sex unions.

"This court has recognized that gay and lesbian couples have a fundamental right to marry and, as of June 16, such couples have been getting married across the state," the lawsuit stated.

"Rather than effecting 'no change' in existing California law, the proposed initiative would dramatically change existing law by taking that fundamental right away and inscribing discrimination based on a suspect classification into our state Constitution," the suit further said. 

The lawsuit also claimed the so-called California Marriage Protection Act should be disqualified because it would revise, rather than amend, the California Constitution by altering its fundamental guarantee of equality for all - in essence writing a law the state high court has already found unconstitutional into the constitution.

"If enacted, it would alter the underlying principles on which the California Constitution is based and make far-reaching changes in the nature of our basic government plan, by severely compromising the core constitutional principle of equal citizenship (and) ... by destroying the courts' quintessential power and role of protecting minorities," it states.

Unlike a state constitutional amendment that can be approved by voters, a constitutional revision requires convening a Constitutional Convention or the appointment of a commission to recommend changes to the California Legislature and voters, according to the petition submitted by same-sex marriage supporters.

Lawyers from the National Center for Lesbian Rights filed the court request on behalf of Equality California.
 
"We filed this lawsuit because the sponsors of the initiative haven't followed the very constitution they're trying to change," attorney Stephen Bomse said.

"For good reason, there's a strict process for making revisions to our constitution and it's more involved than simply collecting petition signatures," he contended. "That process is in place to safeguard our basic form of government, especially the most basic principle of equal protection of the laws."

The suit names California Secretary of State Debra Bowen and the measure's sponsors, a coalition of religious and social conservative groups called Protect Marriage, as defendants.

Since Bowen's office already has certified the amendment for the fall election, a spokeswoman said she can only remove it through a court order.

"She has a ministerial duty to certify any initiative when they qualify through the petition process, and she can't remove an initiative without a judge's order," said Kate Folmer, a spokeswoman for the secretary of state.

The Arizona-based Alliance Defense Fund, which represents the measure's sponsors, called the petition a "desperate" move it would fight.

"This is just another attempt to force a radical political agenda upon the people of California," said ADF Senior Counsel Glen Lavy. "Equality California and its allies are desperate to evade democracy. The opponents of marriage are willing to use any means necessary to impose their will."

Lavy said supporters of the initiative, "will defend the right of the people to participate in democratic process and vote on the constitutional amendment."

The lawsuit asked the court to issue a stay blocking the ballot measure from going to the state printer until the panel has held a hearing and issued a ruling on whether the initiative should be taken off the ballot.

The high court has the options of holding a hearing on the lawsuit, acting on the request without holding a hearing or sending the case to a lower court.

The lawyers for Equality California wrote that they filed the case directly with the Supreme Court because the Aug. 11 deadline for ballot measures to go to the printer does not allow time for the case to work its way through lower courts.

The last time the state Supreme Court was asked to decide if a proposition should remain on the ballot was 2005, when it did so twice. In both decisions, the propositions were allowed to stay on the special election ballot.

In both 2005 cases, the high court overturned lower courts who had taken the propositions -- a legislative redictricting initiative backed by Gov. Arnold Schwarzenegger and another that would have re-regulated the state's electricity market -- off the ballot.

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