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A lawsuit contending that Proposition 8 is not a valid initiative because it improperly attempts to undo the California Constitution’s core commitment to equality and deprives the courts of their essential constitutional role of protecting the rights of minorities.


On November 5, 2008, Lambda Legal, along with the American Civil Liberties Union and the National Center for Lesbian Rights, filed a writ petition in the California Supreme Court. The petition urges the court to hold invalid Proposition 8, an antigay ballot measure that improperly was used in an attempt to undo the California Constitution’s core commitment to equality for everyone by eliminating lesbian and gay couples’ fundamental right to marry. The groups had filed a similar writ petition in California’s high court before the election because they believed the measure’s proponents used the wrong procedure to bring their proposal before the voters. As is common, however, the court dismissed that petition without addressing its merits, leaving the groups to renew their arguments if the voters approved Prop 8. After the groups filed their writ petition, two other petitions were filed in the Supreme Court the same day making similar arguments. The Supreme Court agreed on November 19 to hear all three petitions challenging Prop 8, setting an expedited briefing schedule.


According to the California Constitution, significant changes to the fundamental organizing principles of state government cannot be made through the initiative process, which involves petition signatures and then a simple majority vote. Instead, such changes first require the support of 2/3 of the state legislature, and then approval by a majority of voters. This would not be the first time the court has voided an improper initiative. In 1990, the court struck down a measure that would have stripped California’s courts of their role as independent interpreters of the state’s constitution.

Lambda Legal’s Impact

A fundamental purpose of the California Constitution is to ensure that everyone has the same rights, and that majorities cannot abuse their voting power to eliminate minority rights. The courts must remain empowered in their essential constitutional role of protecting minorities. A victory would send a clear message that everyone must follow the rules when attempting to change laws to make one group unequal to everyone else, and especially to change a constitution to replace equal protection with mandatory government discrimination against a vulnerable minority.