After losing at the polls, gay-rights advocates filed a legal challenge Wednesday in California Supreme Court to Proposition 8, a long-shot effort that the measure's supporters called an attempt to subvert the will of voters.
Lawyers for same-sex couples said they will argue that the anti-gay-marriage measure was an illegal constitutional revision – not a more limited amendment, as backers said.
The legal action contends that Proposition 8 actually revises the state constitution by altering such fundamental tenets as equal-protection guarantees. A measure to revise the state Constitution can be placed before voters only by the legislature.
Opponents of gay marriage expressed outrage.
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“Now, if (gay-rights activists) want to legalize gay marriage, what they should do is bring an initiative themselves and ask the people to approve it,” said Proposition 8 co-chair Frank Schubert. “But they don't. They go behind the people's back to the courts and try and force an agenda on the rest of society.”
Former California Supreme Court Justice Joseph Grodin said the legal challenge will be a “tough battle” for supporters of same-sex marriage.
Gay-marriage proponents see it differently. “A major purpose of the Constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the Constitution itself, only the Legislature can initiate such revisions to the Constitution,” said Elizabeth Gill, a staff attorney with the American Civil Liberties Union of Northern California.
The lawsuit was filed on behalf of Equality California and six same-sex couples who did not marry before Tuesday's election but would like to marry now.
The state Supreme Court has twice before invalidated measures as illegal revisions, but some legal analysts expressed doubt that the Proposition 8 challenge would succeed. Similar attempts to overturn anti-gay-marriage measures have failed in Oregon and Alaska.
The loss was devastating to many.
Paul Waters and Kevin Voecks of Valley Village, who married more than four months ago, were stunned. “More than half of my fellow Californians still don't get it,” said Waters, 53. “They still don't understand that sexual orientation is … not a thing that should differentiate.”
Elsewhere in the country, two other gay-marriage bans, in Florida and Arizona, also won. In both states, laws already defined marriage as a heterosexual institution.
Proposition 8 was the most expensive proposition on any ballot in the nation this year, with more than $74 million spent by both sides.
The battle was closely watched across the nation because California is considered a harbinger of cultural change and because this is the first time voters have weighed in on gay marriage in a state where it was legal.
Campaign contributions came from every state in the nation in opposition to the measure and every state but Vermont to its supporters.
Most of the state's highest-profile political leaders – including both U.S. senators and the mayors of San Francisco, San Diego and Los Angeles – along with the editorial pages of most major newspapers, opposed the measure.
On the other side were an array of conservative organizations, including the Knights of Columbus, Focus on the Family and the American Family Association, along with tens of thousands of small donors, including many who responded to urging from Mormon, Catholic and evangelical clergy.