Opponents of Proposition 8 in California have refused to concede the election, citing the approximately 4 million absentee ballots that have yet to be counted. That's probably a long shot, but apparently we have another ace up our sleeve.
Originally I believed there would be no recourse in the courts; after all, Proposition 8 amends the state constitution, which the state supreme court must uphold and enforce. However, an emergency appeal was filed today by Lambda Legal, the ACLU and the National Center for Lesbian Rights urging the invalidation of Proposition 8.
Here's the argument: in May, the court cited numerous precedents and reiterated that marriage is a fundamental right. Proposition 8 improperly eliminates access to a fundamental right by targeting a specific group. To put that another way, it's as if California voters had passed an amendment to deny the right of free speech only to women, or the right to vote to non-whites. According to the brief filed today, "any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn’t happen with Proposition 8, and that’s why it’s invalid."
There's even a precedent for this. In 1990, the state supreme court reversed an initiative that "improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution. "
The state legislature voted twice to legalize same-sex marriage in the state, and the supreme court ruled 4-3* back in May in favor of marriage. Proposition 8 may yet fall.
The bigots will scream bloody judicial activism, but we have to win this. Proposition 8 is a manifest injustice. Under the banner of righteousness, these people campaigned on fear and deception to villainize and victimize thousands of their fellow citizens. Prop 8 protects nothing -- least of all children or the free expression of religion -- and serves only to deny thousands of Americans their fundamental rights for the sake of outright prejudice.
In yet more reassuring news, the California Attorney General issued a statement today that the 18,000 same-sex marriages that have already taken place will continue to be honored.
This is not over!
* In the original version of this post, I inadvertently wrote that the supreme court ruled "unanimously" in favor of marriage; I was thinking of New Jersey's Lewis v. Harris. In the California case, three justices concurred and dissented in part.