The Anti-Defamation League, Asian Law Caucus, Bet Tzedek Legal Services, and Japanese American Citizens League and Public Counsel argues:

http://www.courtinfo.ca.gov/courts/supreme...

II. Prop. 8's validity is of sufficient public importance for the Court to exercise original jurisdiction.


III. ....

A. Prop. 8 threatens the permanent and abiding nature of the requirement that laws must apply equally to all - the most basic principle of democratic government. Respondents might argue that Prop 8 is a simple, one-sentence alteration of the Constitution and therefore is not sufficiently far-reaching to constitute a revision. But the simplicity of a constitutional provision says nothing of its scope. As this Court rightly observed, "even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." (Amador Valley Joint Union High School Dist. v. State Board of Equalization)....Under this Court's precedents, such a drastic alteration of the core principle of equal protection - which would open the door to evisceration of the protections of the suspect classification doctrine - is a revision, not an amendment. As such, Prop. 8 cannot be enacted through the typical initiative process. (Raven v. Deukmeijian; Livermore v. Waite).

1. The History of Discrimination against Disfavored California Minorities Underscores the Importance of the Constraints the People Placed on Themselves through Article XVIII

they then list a number of discriminatory measures from the past:

- tax statutes designed to drive Chinese immigrants from the state
- statutes prohibiting person designated as "black or mulatto...or Indian" from testifying "in favor of, or against, any white person"
- statutes and ordinances barring "Negroes, Mongolians, and Indians" from public schools.
- statutes prohibiting marriage between "white person negroes, Mongolians, members of the Malay race, or mulattoes."

the People have enacted similar discriminatory statutes through the initiative process, as well:

- an initiative that strengthened and expanded the so-called Alien Land Law, which prohibited certain immigrants who were ineligible for citizenship from owning agrigultural lands (enacted through a campaign with a bitter anti-Japanese flavor.)
- 1964 Proposition 14, which amended the CA Constitution to overturn recently enacted state laws prohibiting racial discrimination in housing. (this Court ruled that it violated the Federal equal protection clause and this decision was affirmed by the US Supreme Court.

2. Enforcing Article XVIII in This Case Preserves the Constitution as the Ultimate Expression of the People's Will

statutory measures enacted by initiative are subject to the same constitutional constraints as ordinary legislation. (in re Marriage Cases)...The suspect classification doctrine, enforced by the courts, thus safeguards the minority from the biases of the majority.

Quoting from re Marriage Cases: "the people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood there was a real difference between amendment and revision."

Though Respondents likely will argue that Prop. 8 must be upheld in order to carry out the People's will, the opposite is true. The People have distinguished between amendments and revisions in article XVIII and have imposed on their own initiative power an important restraint to be enforced by the courts.

<They go on to argue that the People are not prevented the power to change the ultimate expression of their will, but they must go through the deliberative process of extensive debate by the Legislature followed by a vote of the People>

B. Stripping Gay and Lesbian Individuals and Couples of Equal Protection with Regard to Marriage Jeopardizes Their Right to Equal Protection in All Areas.

these rights include: the right to parent, to work in certain professions, or even to enter into private consensual relationships...while it is true that measures might violate the federal Constitution, the People of California should not have to depend on the federal Constitution or federal Supreme Court to protect their basic civil rights...to deny gay and lesbian people equal protection with regard to the fundamental right to marry is to stigmatize them as unworthy of equal protection across the board...

<This is important here:> "there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term 'marriage' is denied only same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship.'

...As the decision in Hall illustrates, when a law negates the inherent dignity and equality of a particular group in one area, that denial inevitably has far-reaching - and often devastating - effects. Prop. 8 supporters might sincerely wish to confine their discriminatory treatment of gay and lesbian people to marriage. Nevertheless, history - and this Court's suspect classification doctrine - teaches that such measures inevitably impose "the stigma of inferiority and second class citizenship."

C. Denying Equal Protection to One Group Undermines the Principles of Equal Protection for All.

Permitting Prop. 8 supporters to forego the revision process would jeopardize the freedom of all California minority groups...In light of the long history of descrimination against many groups in California, including persons of Asian and Pacific Island descent, this Court should not assume that introduction of such measures is far-fetched.

...Californians are entitled to the independent protections of their state Constitutions.

<amici: >