http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/05/BA3B13UM63.D...
Same-sex marriage issue heading back to state Supreme Court

Bob Egelko, Chronicle Staff Writer

(11-05) 18:16 PST SAN FRANCISCO -- A day after California voters approved a state constitutional ban on same-sex marriage, the incendiary issue returned to the state Supreme Court, where gay and lesbian couples and the city of San Francisco filed lawsuits Wednesday seeking to overturn Proposition 8.
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Meanwhile, Attorney General Jerry Brown, who represents the state in court, said he would defend the legality of the thousands of same-sex marriages conducted in the 4 1/2 months leading up to election day - even though sponsors of Prop. 8 say the measure was intended to invalidate those marriages. That controversy is also likely to end up before California's high court and could reach the U.S. Supreme Court.

"It is my belief that the courts will hold that these same-sex marriages entered into are valid," Brown said in a statement. He said he would defend Prop. 8 against legal challenges, but would also defend "the marriages contracted during the time that same-sex marriage was the law in California."

A research institute at UCLA has estimated that 18,000 same-sex couples have married in California since the state Supreme Court's ruling legalizing such marriages took effect June 16. In a victory statement Tuesday night, the Yes on 8 campaign asserted that from now on, "only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed."

Campaign manager Frank Schubert said Wednesday, however, that his organization has no plans to challenge any of those marriages in court. The question will have to be decided by "the court that created that problem" by refusing to suspend its ruling until after the election, he said, without describing how it might reach the court.

Prop. 8 would overturn the court's 4-3 ruling May 15 that declared same-sex couples had the right to marry under the California Constitution on the grounds of privacy and equal protection. Backers of the measure made the court a focus of their campaign, accusing "activist judges" of thwarting the will of voters who had approved a similar measure as an initiative statute in 2000.

Three lawsuits were filed directly with the state Supreme Court on Wednesday, seeking orders immediately blocking enforcement of Prop. 8 and ultimately striking it down as a violation of fundamental rights in the California Constitution.The plaintiffs are six unmarried same-sex couples and the advocacy group Equality California; another couple who married shortly after the May 15 ruling took effect; and the cities of San Francisco and Los Angeles, joined by Santa Clara County.

Although their lawyers would not discuss their strategy publicly, each suit seeks to overturn Prop. 8 on the basis of state law and avoids federal constitutional claims that could send the case to the U.S. Supreme Court. Gay-rights advocates have tried to keep such disputes away from the nation's high court, out of fear that the justices would issue a nationwide ruling rejecting any right of same-sex marriage under the U.S. Constitution.

That leaves the plaintiffs with the difficult task of showing that Prop. 8, a state constitutional amendment, violates other, more basic provisions of California's charter. The court has almost always rejected such challenges to other constitutional amendments.

Some of the same legal organizations filing suit Wednesday offered similar arguments this summer to try to remove Prop. 8 from the ballot, but the court refused, while leaving room for a post-election challenge.

The couples' lawsuits contend Prop. 8 is so far-reaching that it is not merely a constitutional amendment but a revision, which requires a two-thirds vote of the Legislature to reach the ballot. Such a vote would be unlikely in an Assembly and state Senate overwhelmingly controlled by Democrats.

The plaintiffs argued that the measure offends constitutional principles by taking important rights away from a historically persecuted minority - gays and lesbians - while stripping judges of their power to protect that group.

"A major purpose of the Constitution is to protect minorities from majorities," said Elizabeth Gill, a lawyer with the American Civil Liberties Union, one of the groups suing on behalf of the six unmarried couples. "Because changing that principle is a fundamental change to the organizing principles of the Constitution itself, only the Legislature can initiate such revisions."

The suit by San Francisco, Los Angeles and Santa Clara County goes a step further and argues that any measure allowing a majority of the public to take away minority rights violates principles of equality at the heart of the state Constitution.

"If allowed to stand, Prop. 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority," said San Francisco City Attorney Dennis Herrera.

Sponsors of the initiative were unimpressed. Andrew Pugno, lawyer for the Prop. 8 campaign, called the legal challenges "an insult to California voters and an attack on the initiative process."

E-mail Bob Egelko at begelkosfchronicle.com">begelkosfchronicle.com.