Lawmakers in California began the
2009-2010 legislative session by introducing resolutions in support
of invalidation of Proposition 8 – the November 4 voter-approved
constitutional amendment that forbids gay marriage in the state.
Freshman Senator Mark Leno introduced a
resolution in the Senate, while Assemblyman Tom Ammiano introduced a
similar measure in the Assembly. Both men are openly gay and members
of the Legislature's gay and lesbian caucus. Senator Mark Leno was
sworn into office on Monday, becoming the first openly gay man to
serve in the California Senate.
The lawmakers join officials from San
Francisco and several other California cities in supporting the
challenge to Proposition 8 filed by a coalition of pro-gay rights
groups, including the National Center for Lesbian Rights, American
Civil Liberties Union and Lambda Legal.
The California Supreme Court will begin
hearing arguments in the case in March.
“Proposition 8 eliminates the
fundamental right to marry from same-sex couples and allows a slim
majority to take away the equal protections of a single minority
group, which violates one of the fundamental and founding principles
of our Constitution,” said Equality California Executive Director
Geoff Kors. “That type of unprecedented change to the Constitution
puts the rights of all Californians at risk, and it's critical in our
system of checks and balances that the Legislature weigh in on such
fundamental revisions to the Constitution.”
Both resolutions mirror legal arguments
made by gay rights activists challenging Proposition 8: That
Proposition 8 is an illegal revision to the state Constitution. A
revision requires legislative approval before being sent to the
voters, while an amendment may be passed with a simple voter
majority.
Proposition 8 was passed with a simple
voter majority. Yet it fundamentally altered the equal protection
clause of the state Constitution, making it invalid, gay activists
argue.
“Proposition 8's revision to the
California Constitution violates key structural checks and balances
built into our legal system,” said Democratic Senator Leno.
“Overnight, the constitutional protections of thousands of tax
paying, law abiding California citizens were stripped from them by a
simple majority vote, without a prior two-thirds vote by both houses
of the legislature, thereby trampling on the fundamental right to
equal protection.”
“You'd think that these legislators
would be focused on resolving the budget deficit or improving the
economy,” said Ron Prentice, chairman of protectmarriage.com, the
principal backer of the gay marriage ban. “Instead, they seem more
interested in grandstanding for the cameras and thumbing their noses
at voters who enacted Proposition 8 by a nearly 600,000 vote margin.”
Neither resolution holds any force of
law, and most legal experts say they are unlikely to sway the court.
“This is the court's decision, not
the Legislature's, just as whether you balance the budget is the
Legislature's decision and not the court's,” Jesse Choper, the Earl
Warren Professor of Public Law at UC Berkeley's School of Law told
the San Francisco Chronicle.
“This resolution adds nothing to the
debate about the validity of Proposition 8,” said Andrew Pugno,
general counsel of protectmarriage.com. “It is simply designed to
get press coverage for the legislators involved. The California
Supreme Court, at our request, has already decided to hear the
challenges to Proposition 8. We are confident that Prop. 8 will be
upheld, as many legal scholars have recently commented. The Court is
not swayed by meaningless legislative resolutions that have no
bearing on the outcome of the court challenges.”
The resolutions, however, do send a
powerful message to voters in California who approved the measure by
a slim majority. Lawmakers opposing the resolution might be targeted
by gay rights activists as homophobic, while the pro-Prop 8 forces
have suggested they would work to unseat justices and politicians who
work – or vote – to overturn the gay marriage ban.
“California legislators have much
important work to do,” Prentice said. “Introducing meaningless
resolutions that insult voters for approving Proposition 8 is not the
best way for them to spend their time.”