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From The Streets To The Courtroom: Where The Fight For Gay Marriage Goes Next

By L.K. Regan

This weekend saw huge protests coast-to-coast as Americans expressed their rage over California's Proposition 8 and similar anti-gay marriage legislation in several other states. As the moment of protest passes, the question becomes: where will the fight go next? Here's a run-down of the current state of play, and what to expect over the next months.

Saturday, November 15th was a day of coordinated protests in every major American city, and some of the not-so-major ones as well. In fact, protests were organized in all of the 50 states in an unprecedented grassroots effort over the internet. In Los Angeles, Mayor Antonio Villaraigosa spoke to a crowd of 9,000. In San Francisco, 10,000 gathered in front of City Hall. And in Las Vegas, comedian and actress Wanda Sykes revealed to a crowd of nearly 1,000 that not only is she gay, but she got married on October 25th.
< br /> Yet the response of the Pro-Prop 8 campaign was clear; the protests will not change the law. Still, their complacency may be misplaced—since the movement to fight Proposition 8 has now moved to the legal realm, and to a series of court challenges that attack the law from several angles.

Last week, three lawsuits were filed in state courts challenging the legitimacy of Proposition 8. And, 44 members of the California Legislature (more than one-third of the members of that body) filed a friend-of-the-court brief to accompany one of those suits. Their brief argues that the Supreme Court of California has a responsibility to protect the rights of minorities against discrimination, and that Prop 8 improperly usurped that authority. The case, which was brought on behalf of gay couples who have not yet married, asserts that voters do not have the right to make such radical changes to state law.

Meanwhile, another promising lawsuit has been undertaken by Gloria Allred, an attorney specializing in feminist cases, and a television commentator and radio host. Allred filed a lawsuit in state court on behalf of a married lesbian couple. She argues that Proposition 8 is itself unconstitutional. Proposition 8 is an amendment to the California state constitution; this is what makes it difficult to overturn, because it is not merely a law. Allred argues, however, that Prop 8 is not really an amendment. In altering a section of the Equal Protection Clause in the constitution, she argues that Prop 8 constitutes a revision, rather than a true amendment. This is a key distinction: amendments to the California constitution are subject to voter approval by a simple majority at the polls; revisions, however, must be approved by the legislature before coming up for a public vote.

What would make Prop 8 a revision rather than an amendment? Its inscribing of discrimination into precisely the portion of the state constitution designed to prevent it. "If Prop. 8 had said that the California Constitution was amended to limit marriage to people of the same race only, would that be constitutional under our state constitution?" Allred said in a statement. "Of course not." A similar objection was expressed in a petition filed by the governments of San Francisco, Los Angeles, and Santa Clara County, who wrote, "Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause. Los Angeles has an interest in protecting the rights of its residents and would be harmed if required to act in contravention of the rights of its lesbian and gay residents."

Jennifer Pizer, a staff lawyer for Lambda Legal, cited the large magnitude of the changes Prop 8 will bring as legitimate grounds for Allred's suit. "The magnitude here is that you are effectively rendering equal protection a nullity if a simple majority can so easily carve an exception into it," she said. "Equal protection is supposed to prevent the targeting and subjugation of a minority group by a simple majority vote." The final lawsuit, brought by the ACLU, similarly cites the Equal Protection Cause as its basis, as did the state's Supreme Court decision legalizing gay marriages in May of this year.

Finally, there is the question of the nearly 18,000 same-sex marriages that have taken place since that landmark decision. Cases involving these marriages will also have to await the State Supreme Court's decision, though State Attorney General Jerry Brown has said that he believes the court will uphold them. Gay activists, meanwhile, are warning against challenges to federal law involving these marriages, as these could prematurely cause the U.S. Supreme Court to weigh in on the issue. As the court is currently constituted, such a challenge is deemed by many to be unlikely to yield gay-friendly results.