Marriage fight turns to preservation of Constitution

Marriage has been argued in the California courts already for years, with the state Supreme Court declaring the creation in May of the "right" for same-sex duos to "marry," but the battle has taken on a new tone with the approval by voters in the state last week of a constitutional amendment defining marriage as only between one man and one woman.

"The battle to preserve marriage has taken on a whole new dimension as we fight to preserve our basic constitutional form of government," said Brad Dacus, of Pacific Justice Institute. "If the courts deny the people of California their inherent right to determine such a basic matter of public policy as preserving marriage, the rule of law will be upended. The stakes are incredibly high."

When it was clear that voters in the state, by a margin of about 53 percent to 47 percent, had approved Proposition 8 on Nov. 4, pro-homosexual activists wasted no time in filing at least three lawsuits seeking to declare the provision in the constitution, which took effect on its approval, unconstitutional.

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Dacus' Pacific Justice Institute now has filed documents with the state Supreme Court to defend the constitutional amendment.

The three cases come from the ACLU and Lambda, a pro-homosexual activist organization, from celebrity attorney Gloria Allred, and from the city attorneys for San Francisco, Los Angeles and Santa Clara County.

"All three cases use the same basic arguments that Prop. 8 'takes rights away' and should be considered a revision, rather than an amendment, to the state constitution," Pacific Justice said. "Revisions must be approved by both the legislature and voters."

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According to state law, California Attorney General Jerry Brown is the official defender of the amendment. However, Brown worked to have it defeated before voters had their say and has not stepped in to respond yet.

As a result, Pacific Justice filed friend-of-the-court briefs in the cases, opposing the demands for the court to block enactment of the provision, which now is a part of the state constitution.

"It is being argued that voters can never undo judicial decisions – even when the courts insert themselves into public policy debates," noted PJI Chief Counsel Kevin Snider. "If accepted, that argument will eviscerate California's initiative process."

"PJI Staff Attorney Matt McReynolds added, "The lawsuit filed by San Francisco, L.A. and Santa Clara County are egregious abuses of power. More than 700,000 citizens in those locales voted in favor of Prop. 8, yet their tax dollars are being used to finance an attack against Prop. 8. This is political grandstanding at its worst."

The filing states: "Petitioners rely on section 923 of the California Code of Civil Procedure (CCP) as authority for a stay of the implementation of Article II, paragraph 8 of the California Constitution. This section provides no grounds upon which the Supreme Court can prevent the implementation of a constitutional amendment while it is under review by the court. Indeed, petitioners have cited no case in California's 158 years of judicial history in which this court has taken such an action. There is good reason for this. Such action would be an usurpation by the judiciary in violation of the separation of powers."

The filing continues that since marriage only between one man and one woman was approved by voters, it became the status quo, as it was for all of the 158 years prior to the May court ruling.

California voters approved a measure in 2000 defining marriage as one man and one woman, but because it was only a state law, the state Supreme Court was able to throw it out. Defenders of traditional marriage sought to put the definition in the state constitution to take it beyond the grasp of activist judges.

 

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