By LATIMES.COM
Added: Wed, 05 Nov 2008 00:00:00 UTC

Reposted from:
http://www.latimes.com/news/local/la-me-gaymarriage6-2008nov06,0,2331815.story

Gay-rights advocates to challenge Proposition 8 in court
Supporters of the measure, which passed Tuesday by a margin of about 52%, are outraged and say the voters have spoken.

After losing at the polls, gay-rights advocates filed a legal challenge today in California Supreme Court to Proposition 8, a long-shot effort that the measure's supporters called an attempt to subvert the will of voters.

Lawyers for same-sex couples said they will argue that the anti-gay-marriage measure was an illegal constitutional revision -- not a more limited amendment, as backers said.

The legal action contends that Proposition 8 actually revises the state Constitution by altering such fundamental tenets as equal-protection guarantees. A measure to revise the state Constitution can be placed before voters only by the Legislature.

Opponents of gay marriage expressed outrage at the move.

"This is exactly the type of behavior that brought us to this position to begin with," said Proposition 8 co-chair Frank Schubert. "The people voted eight years ago overwhelmingly in favor of traditional marriage and they seem to be saying in pretty strong terms again . . . that they favor traditional marriage, and yet this is not accepted by gay-rights activists."

"Now, if they want to legalize gay marriage, what they should do is bring an initiative themselves and ask the people to approve it. 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."

Former California Supreme Court Justice Joseph Grodin said the legal challenge will be a "tough battle" for supporters of same-sex marriage.

Gay-marriage proponents see it differently. "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," said Elizabeth Gill, a staff attorney with the ACLU of Northern California.

It is a matter of fairness, said Jenny Pizer, a staff attorney with Lambda Legal. "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," she said.

The lawsuit was filed on behalf of Equality California and six same-sex couples who did not marry before Tuesday's election but would like to marry now.

The state high court has twice before invalidated measures as illegal revisions, but some legal analysts expressed doubt that the Proposition 8 challenge would succeed. Similar attempts to overturn anti-gay-marriage measures have failed in Oregon and Alaska.

A spokesman for San Francisco City Atty. Dennis Herrera said he would also file a legal challenge.

With more than 96% of precincts reporting in the state, the measure leads by a margin of 52% to 48%, prompting The Times to call the race. Opponents of the measure have not yet conceded defeat.

The loss was devastating to many in the state.

Paul Waters and Kevin Voecks of Valley Village, who married more than four months ago, were stunned today. "More than half of my fellow Californians still don't get it," said Waters, 53. "They still don't understand that sexual orientation is . . . not a thing that should differentiate."

Waters said he can't know what will happen to the legality of his marriage. But, he says, "what is in our minds and in our hearts will never change, and nobody . . . no matter the fire in their eyes or the coldness in the hearts, will be able to change that."

Proposition 8Early in the campaign, strategist Jeff Flint noted, polls showed the measure trailing by 17 points.

"I think the voters were thinking, 'Well, if it makes them happy, why shouldn't we let gay couples get married.' And I think we made them realize that there are broader implications to society and particularly the children when you make that fundamental change that's at the core of how society is organized, which is marriage," he said.

Elsewhere in the country, two other gay-marriage bans, in Florida and Arizona, also won. In both states, laws already defined marriage as a heterosexual institution. But backers pushed to amend the state constitutions, saying that doing so would protect the institution from legal challenges.

Proposition 8 was the most expensive proposition on any ballot in the nation this year, with more than $74 million spent by both sides.

The measure's most fervent proponents believed that nothing less than the future of traditional families was at stake, while opponents believed that they were fighting for the fundamental right of gay people to be treated equally under the law.

"This has been a moral battle," said Ellen Smedley, 34, a member of the Mormon Church and a mother of five who worked on the campaign. "We aren't trying to change anything that homosexual couples believe or want -- it doesn't change anything that they're allowed to do already. It's defining marriage. . . . Marriage is a man and a woman establishing a family unit."

On the other side were people like John Lewis, 50, and Stuart Gaffney, 46, who were married in June. They were at the San Francisco party holding a little sign in the shape of pink heart that said, "John and Stuart 21 years." They spent the day campaigning against Proposition 8 with family members across the Bay Area.

Today, Lewis was still unwilling to concede defeat. "Stuart and I are not giving up at all at this point," Lewis said. "We are standing true and we are continuing to remain hopeful. . . . You can't take a marriage away from someone like Stuart and me and the thousands of others couples," he said.

The battle was closely watched across the nation because California is considered a harbinger of cultural change and because this is the first time voters have weighed in on gay marriage in a state where it was legal.

Campaign contributions came from every state in the nation in opposition to the measure and every state but Vermont to its supporters.

And as far away as Washington, D.C., gay rights organizations hosted gatherings Tuesday night to watch voting results on Proposition 8.

"This is the biggest civil-rights struggle for our movement in decades," said Human Rights Campaign President Joe Solomonese, speaking from a Proposition 8 gathering at a brewery in the nation's capital. "The outcome weighs incredibly heavily on the minds of every single person in the room."

Eight years ago, Californians voted 61% to define marriage as being only between a man and a woman.

The California Supreme Court overturned that measure, Proposition 22, in its May 15 decision legalizing same-sex marriage on the grounds that the state Constitution required equal treatment of gay and lesbian couples.

Opponents of Proposition 8 faced a difficult challenge. Bob Stern, president of the Center for Governmental Studies, said California voters "very, very rarely reverse themselves" especially in such a short time. Both sides waged a passionate -- and at times bitter -- fight over whether to allow same-sex marriages to continue. The campaigns spent tens of millions of dollars in dueling television and radio commercials that blanketed the airwaves for weeks.

But supporters and opponents also did battle on street corners and front lawns, from the pulpits of churches and synagogues and -- unusual for a fight over a social issue -- in the boardrooms of many of the state's largest corporations.

Most of the state's highest-profile political leaders -- including both U.S. senators and the mayors of San Francisco, San Diego and Los Angeles -- along with the editorial pages of most major newspapers, opposed the measure. PG&E, Apple and other companies contributed money to fight the proposition, and the heads of Silicon Valley companies including Google and Yahoo took out a newspaper ad opposing it.

On the other side were an array of conservative organizations, including the Knights of Columbus, Focus on the Family and the American Family Assn., along with tens of thousands of small donors, including many who responded to urging from Mormon, Catholic and evangelical clergy.

An early October filing by the "yes" campaign reported so many contributions that the secretary of state's campaign finance website crashed.

Proponents also organized a massive grass-roots effort. Campaign officials said they distributed more than 1.1 million lawn signs for Proposition 8 -- although an effort to stage a massive, simultaneous lawn-sign planting in late September failed after a production glitch in China delayed the arrival of hundreds of thousands of signs.

Research and polling showed that many voters were against gay marriage but afraid that saying so would make them seem "discriminatory" or "not cool," said Flint, so proponents hoped to show them they were not alone.

Perhaps more powerfully, the Proposition 8 campaign also seized on the issue of education, arguing in a series of advertisements and mailers that children would be subjected to a pro-gay curriculum if the measure was not approved.

"Mom, guess what I learned in school today?" a little girl said in one spot. "I learned how a prince married a prince."

As the girl's mother made a horrified face, a voice-over said: "Think it can't happen? It's already happened. . . . Teaching about gay marriage will happen unless we pass Proposition 8."

Many voters said they had been swayed by that message.

"We thought it would go this way," Proposition 8 co-chair Frank Schubert said. "We had 100,000 people on the streets today. We had people in every precinct, if not knocking on doors, then phoning voters in every precinct. We canvassed the entire state of California, one on one, asking people face to face how do they feel about this issue.

"And this is the kind of issue people are very personal and private about, and they don't like talking to pollsters, they don't like talking to the media, but we had a pretty good idea how they felt and that's being reflected in the vote count."

Jessica Garrison, Maura Dolan and Nancy Vogel are Times staff writers.

jessica.garrison@latimes.com

cara.dimassa@latimes.com

richard.paddock@latimes.com

TAGGED: HUMAN RIGHTS, MORALITY, RELIGION