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Gloria Allred (right) with clients (AP/Photo by Reed Saxon)

Back to court … again

Family | Californians voted for traditional marriage Tuesday, but same-sex marriage proponents have countered by filing lawsuits challenging Proposition 8

Proposition 8 supporters succeeded in banning same-sex marriage in California, but their opponents aren't ready to give up yet. Wednesday, one day after voters re-banned gay marriage in the state by a margin of 52.2 to 47.8 percent, three different plaintiffs filed lawsuits challenging the measure's constitutionality.

The Lambda Legal Defense, the National Center for Lesbian Rights, and the American Civil Liberties Union filed a single suit. The counties of San Francisco, Santa Clara, and Los Angeles joined to file another. Attorney Gloria Allred filed a third suit on behalf of married lesbian clients.

"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," Lambda said in a statement.

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Alliance Defense Fund senior counsel Glenn Lavy, who has defended traditional marriage in the state, said the suits underscore homosexual activists' disrespect for the will of the people. "Before the election, the opposition tried everything to keep Prop 8 off the ballot," Lavy said. "Now that the measure has passed they are showing that they are determined to destroy the democratic process. Any pretense of 'tolerance' is over."

At their core, the suits argue that the Prop 8 amendment so fundamentally changes the basic structure of California law that it is a revision of the constitution rather than an amendment. A similar argument crashed and burned in Oregon this summer when a state appeals court rejected a challenge to Oregon's 2004 marriage amendment. The court used previous California case law as the basis of its ruling.

California conservatives weren't the only traditional marriage winners on Tuesday. In an election that pitched the country toward the "progressive," voters in two other states issued strong statements on tradition. Florida's marriage amendment was arguably the toughest-and the toughest to pass. The measure defined marriage as between one man and one woman, but also banned same-sex equivalents, such as civil unions. Further, the measure had to pull a 60 percent voter share to win. It did, passing by 62 percent in a state that went Democratic in the presidential race.

Arizona also passed a marriage amendment-just two years after becoming the first state to defeat one. In 2006, voters there rejected as too broad a constitutional amendment that defined marriage along traditional lines and also banned civil unions and domestic partnerships. This year, though, Arizonans voted in favor of Proposition 102, a streamlined amendment that stopped at defining marriage.

Still, it was bellwether California that generated national attention, with Proposition 8 inspiring election night watch parties as far away as Virginia. The measure's passage will likely hamper those who had hoped to take same-sex marriage national from California. The pre-Prop 8 legal strategy would have been to sue on behalf of out-of-state couples for recognition of their marriages in their home states.

"It will be harder now for them to succeed in lawsuits in other states when the marriage licenses in question are no longer valid or recognized in California," Lavy said.

Lynn Vincent
Lynn Vincent

Lynn is a senior writer for WORLD Magazine and the best-selling author of 10 non-fiction books.


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