Reporting from Sacramento — Forty-three Democratic legislators, including leaders of the California Senate and Assembly, filed a brief Monday urging the California Supreme Court to void Proposition 8.
With almost 11 million ballots tallied, Proposition 8 had 52.3% of the vote to 47.7%. Although many ballots remain to be counted, the 500,000-vote spread is viewed as insurmountable.
“The citizens of California rely on the Legislature and the courts to safeguard against unlawful discrimination by temporary, and often short-lived, majorities,” the legislators said in the document, written by attorneys at the firm Gibson, Dunn & Crutcher.
“This is a Hail Mary, no question about it,” said Frank Schubert, manager of the Proposition 8 campaign.
Atty. Gen. Jerry Brown’s office would be obligated to defend the initiative. But Schubert said that if the high court agrees to hear the case, backers of the initiative would seek to intervene to defend it.
In their brief, lawmakers described the 500,000-vote margin as a “bare majority,” and said it was “compromising the enduring constitutional promise of equal protection under the law.”
“Proposition 8 seeks to effect a monumental revision of this foundational principle and constitutional structure by allowing a bare majority of voters to eliminate a fundamental right of a constitutionally protected minority group,” the brief says.
“If Proposition 8 takes effect, this court will no longer be the final arbiter of the rights of minorities,” it continues.
The action contends that the ban, created by the initiative that defines marriage as being between one man and one woman, cannot be done by a mere constitutional amendment. Rather, it must be done by a revision of the entire Constitution and the Legislature would have to be involved.
As advocates of same-sex marriage turn to courts, protests, and perhaps a future ballot measure in an attempt to overturn Proposition 8, Schubert declared that the vote is “as over as Barack Obama’s election.”
The chief strategist for Proposition 8 said the best way to overturn the measure would be to place an initiative on the ballot that would repeal it. But he doubts that will happen.
“Politically, this was the best chance they could have possibly had,” Schubert said of the measure’s opponents.
The all-important ballot title written by Brown cast the measure as one that would revoke a right, a move that had been viewed as particularly helpful to opponents.
Also, Schubert noted, there was a huge Democratic turnout — although many Democrats, particularly African Americans and Latinos, don’t support same-sex marriage and voted for Proposition 8. Exit polls showed blacks supported the measure 70% to 30%.
One of the closing ads featured Sen. Dianne Feinstein (D-Calif.). Popular though she is, Schubert said, it was odd that Proposition 8 foes would select Feinstein to lecture voters, including minorities, about discrimination.
“It had the feel of a lily white, liberal campaign,” Schubert said.
Note from Beetlebabee: There are several lawsuits going on simultaneously. If you can’t get what you want, SUE! That seems to be the gay activist motto here. This one was sent to me from L.A. County.
The Los Angeles County Board of Supervisors voted this afternoon to join a lawsuit filed by the City of Los Angeles, San Francisco and Santa Clara County challenging the constitutionality of Proposition 8, the anti-gay marriage initiative voters passed by a narrow margin this month.
The vote was carried by the board’s three Democrats: Supervisors Gloria Molina and Zev Yaroslavsky, who proposed the board join the lawsuit, and Supervisor Yvonne B. Burke, who voted in support.
Of the two Republicans, Supervisor Michael Antonovich was out of town, and Supervisor Don Knabe left the meeting just as speakers began.
More than a dozen speakers appeared in support of the board’s vote and opposition to Proposition 8, including Los Angeles City Atty. Rocky Delgadillo, San Francisco City Atty. Dennis Herrera and several gay couples. Both Molina and Yaroslavsky, who have officiated at same-sex wedding ceremonies since California legalized them in June, said they acted out of a sense of duty and personal responsibility.
Yaroslavsky pointed out a couple he married who were among those speaking in support of the vote.
“Some of us may ask why the county supervisors would be involved and get so involved in this issue,” Molina said, citing the board’s responsibility to supply marriage license, uphold the law and “balance the enforcement of Proposition 8 with recognizing the constitutional right of all our citizens.” Molina added, “On a personal note, I am here to say that the passage of Prop. 8 saddened and angered me on various levels.”
Yarolslavsky noted that was “a close call” given how divided the state and county have been on the question of gay marriage. He said that he was not always a supporter of gay marriage (he supported civil unions instead) but said he “was persuaded” by colleagues and his children.
“It’s very important for the County of Los Angeles to be at the table on this,” he said. “It doesn’t hurt anybody. It doesn’t adversely affect anybody else.”
*Update: Antonovich had earlier said he would not support the legal challenge. His statement: “The appropriate time to have raised legal objections was prior to the election –- not after the people have once again voted on the issue. This move will disenfranchise voters who turned out in record numbers to participate in the process and have their voices heard.”