Three lawsuits were filed directly with the state Supreme Court on Wednesday, seeking orders immediately blocking enforcement of Prop. 8 and ultimately striking it down as a violation of fundamental rights in the California Constitution.The plaintiffs are six unmarried same-sex couples and the advocacy group Equality California; another couple who married shortly after the May 15 ruling took effect; and the cities of San Francisco and Los Angeles, joined by Santa Clara County.
Although their lawyers would not discuss their strategy publicly, each suit seeks to overturn Prop. 8 on the basis of state law and avoids federal constitutional claims that could send the case to the U.S. Supreme Court. Gay-rights advocates have tried to keep such disputes away from the nation's high court, out of fear that the justices would issue a nationwide ruling rejecting any right of same-sex marriage under the U.S. Constitution.
That leaves the plaintiffs with the difficult task of showing that Prop. 8, a state constitutional amendment, violates other, more basic provisions of California's charter. The court has almost always rejected such challenges to other constitutional amendments.
The couples' lawsuits contend Prop. 8 is so far-reaching that it is not merely a constitutional amendment but a revision, which requires a two-thirds vote of the Legislature to reach the ballot. Such a vote would be unlikely in an Assembly and state Senate overwhelmingly controlled by Democrats.
The plaintiffs argued that the measure offends constitutional principles by taking important rights away from a historically persecuted minority - gays and lesbians - while stripping judges of their power to protect that group.
"A major purpose of the Constitution is to protect minorities from majorities," said Elizabeth Gill, a lawyer with the American Civil Liberties Union, one of the groups suing on behalf of the six unmarried couples. "Because changing that principle is a fundamental change to the organizing principles of the Constitution itself, only the Legislature can initiate such revisions."
(hugs to the pup and her gf and my daughter and all the queer little bunnies here.)