The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group – lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities.
Writs are requests for an appellate court ruling on an issue before it goes to trial. I gather from the legal expert’s statements on the writ that appellate courts are not inclined to such boldness:
“Historically, courts are reluctant to get involved in disputes if they can avoid doing so,” said Shannon Minter, Legal Director of NCLR. “It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Prop 8 may pass, the courts will have to weigh in and we believe they will agree that Prop 8 should never have been on the ballot in the first place.”
However, it also appears that courts frown on the tyranny of the majority, especially as it usurps their judicial powers:
This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the “Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.” That measure was invalid because it improperly attempted to strip California’s courts of their role as independent interpreters of the state’s constitution.
The court clearly ruled that marriage was a basic right of citizenship in May of this year, and should be displeased with a change to the constitution that attempts to sidestep this ruling. I hope.
The writ was filed by The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights.