In the last round of an expedited briefing schedule, final briefs were filed Wednesday by both petitioners and respondents in the lawsuits challenging Proposition 8. The briefs filed Wednesday by the National Center for Lesbian Rights, Lambda Legal, and the ACLU responded to the more than 60 amicus curiae, or “friend of the court,” briefs filed in the case last week.

In amicus briefs filed Jan. 15, legal scholars argued Proposition 8 is invalid because it seeks to eliminate a fundamental right only for a targeted minority, which cannot be done through the initiative process. Professors from Harvard University, Stanford University, Yale University, University of California (Berkeley, Los Angeles, Hastings, Davis, Irvine), University of Southern California, University of Pennsylvania, Rutgers University, University of San Francisco, Loyola Law School, Santa Clara Law School, Chapman University, and Pepperdine University filed the brief.

A brief authored by Hastings Law Professor Donna Ryu and joined by 20 constitutional law experts, argued: “Proposition 8 represents the first time that the California initiative process has been wielded to abolish a fundamental freedom for an unpopular minority group and to alter the Constitution so as to mandate governmental discrimination against that group. In this way, Proposition 8 attempts to breach some of the most elemental textual and structural promises of our state Constitution. It revokes a fundamental right that, in the words of the Constitution, is ‘inalienable.’ It dismantles constitutional equality for a single group of Californians – a group that, because of its history of oppression and stigma, is entitled to the highest level of constitutional protection against discrimination.”

On Jan. 15, 43 friend-of-the-court briefs urging the court to invalidate Proposition 8 were filed, arguing that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution, and that the rights of a minority cannot be eliminated by a majority vote.

Other briefs supporting the legal challenge to Proposition 8 were filed on behalf of 65 current and former California legislators; dozens of bar associations, legal aid organizations; and numerous California municipal governments.

In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians. Proposition 8 eliminated this right for same-sex couples. Proposition 8 passed by 52 percent on Nov. 4.

The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this challenge on Nov. 5, representing Equality California, whose members include many same-sex couples who married between June 16 and Nov. 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney. These three cases are jointly under review by the California Supreme Court.

On Nov. 19, 2008, the California Supreme Court granted review in the legal challenges to Proposition 8, and established an expedited briefing schedule, under which briefing was completed on Wednesday. The California Supreme Court has stated that it may schedule oral argument as early as March 2009.

– Staff report