News

Log Cabin Republicans File Amicus Brief Opposing California's Proposition 8

January 22, 2009

(San Francisco, CA) – Late last week, Log Cabin Republicans filed a brief of amicus curiae supporting the challenge to Proposition 8 and its ban on marriage equality for gay and lesbian couples. "Proposition 8 is an unprecedented attempt to use the initiative amendment process to eviscerate constitutional rights only for a targeted minority," said Terry Hamilton, a California resident, who serves as Log Cabin's National Board Chairman. "The California Constitution provides equal protection to all Californians to prevent the majority from stripping fundamental rights from one group of citizens."

Log Cabin Republicans filed its amicus brief both to advocate for its members' rights and to raise legal arguments not raised in the Petitioners' briefs. For example, Log Cabin Republicans' brief demonstrates that the initiative amendment process cannot be used to strip rights from a minority because that process is constrained by other core constitutional protections of individual rights. Moreover, Proposition 8 necessarily entails a qualitative "revision" of the Constitution as it would imply repeal of the Constitution's privileges or immunities clause, which explicitly requires that a "citizen or class or citizens may not be granted privileges or immunities not granted on the same terms to all citizens."

"Proposition 8 alters or nullifies no less than six essential constitutional rights, including the privileges or immunities clause, the right to privacy, the right to intimate association, the right to pursue and obtain happiness, the fundamental right to marry and the equal protection clause," said Dan Woods, a partner at White & Case LLP which is representing Log Cabin Republicans on a pro bono basis in this matter. "So long as any Californian has the right to marry the individual of his or her choice, the fundamental right of every Californian to do the same is compelled by numerous provisions of constitutional text, dating back to the very adoption of the Constitution in 1879."

In November, California voters narrowly passed Proposition, which overturns the state Supreme Court's May 2008 marriage equality decision. Within days of the election, Petitioners filed suit arguing that Proposition 8 was a "revision" to the Constitution, not an amendment. In addition to voter approval, revisions require approval by a supermajority vote of the state's lawmakers.

Long-time activist and Log Cabin member Kevin Norte was the first to publish and originate the concept in print that Proposition 8 might be a revision instead of an amendment. He detailed his views in the Met News last May.

The California Supreme Court could hear arguments as early as March 2009 in this critically important constitutional rights case.