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Diversity Leadership CouncilThe newsletter of the ISBA’s Diversity Leadership Council

June 2009, vol. 3, no. 1

California Proposition 8 update

Last summer, the Supreme Court of California became the second state high court in the United States to end years of marriage inequality. The Court declared that gay and lesbian couples will no longer be treated as second class citizens in the state of California. The Court also classified gays and lesbians as a protected class under the state constitution alongside race and gender. Celebration and joy spread throughout California and more than 18,000 gay and lesbian couples were married between June and November.

In the backdrop of this great advance in civil rights, conservatives were putting together a ballot initiative called Proposition 8 which read, “Only marriage between a man and a woman is valid or recognized in California.”

These words would later take away the Constitutional rights of thousands of Californians. This is the first time a proposition threatened to change the Constitution to take away fundamental rights rather than extending them.

As Co-president of the Lesbian and Gay Lawyers Association of Los Angeles, I, along with my male Co-president and Board of Governors, felt that it was of utmost importance to put everything on hold and direct our efforts to battle this Proposition. LGLA, along with other Bar Associations, including the Los Angeles County Bar Association and many others, fought hard to raise money, awareness and media coverage in order to stop the passage of this hateful initiative.

To our dismay, on November 4, 2008, Proposition 8 passed by a narrow margin of 52.24% to 47.76%. People flooded the streets of California in protests across the state for weeks.

Lawsuits were subsequently filed in the California Supreme Court challenging the validity of Proposition 8 and the Court agreed to hear oral arguments on March 5, 2009.

On March 5, 2009 oral arguments were presented by both sides. The challenger’s side argued that proposition 8 was a major overhaul of the underpin- ning of the state constitution and hence a revision rather than an amendment. If found to be a revision, a simple majority vote is not enough for Proposition 8 to be valid. The other compelling argument is that Proposition 8 impedes the judiciary’s authority to protect minority groups from discrimination. This second argument is the way the fundamental rights issues came into play during oral arguments. The proponents argued that Proposition 8 is an amendment and that it should be applied retroactively to invalidate the 18,000 marriages which took place between June and November.

During oral arguments, the Justices seemed to be leaning toward keeping Proposition 8 valid but not invalidating the 18,000 marriages which took place. Any prediction of the result, however, is complete speculation.

Since Oral Arguments, Iowa and Vermont have become the newest States that have extended Marriage Equality to all couples.

The Supreme Court’s decision will send a strong signal to all. It is ironic that the same Court that extended Marriage Equality for all is now faced with either having the courage to stand by their word or falter to conservative political pressure and the fear of a possible recall.

The Supreme Court should be courageous, do the right thing and invalidate Proposition 8. Not only is this a monumental civil rights issue but the message that will come across if the Court stands by its word is that fundamental rights are of such importance that they cannot be taken away by a simple majority vote. This case will also set the much-needed precedent that will give guidance about the legislative process of revisions versus amendments by making it about the effect rather than linguistic wording.

California has always been a leader on the forefront of civil equality. More than 18,000 married couples, thousands more that want their love fully recognized and hundreds of thousands of supporters of equal marriage rights await the Supreme Court’s ruling which is set to be released this summer.

Regardless of the decision, the prog- ress toward full civil right and marriage equality for all continues.

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Sepi Ghafouri is the Owner of Law Office of Sepi Ghafouri and 2008 Co-President of the Lesbian and Gay Lawyers of Los Angeles.


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