Friday, February 27, 2009

California gay marriage fight echoes past

California gay marriage fight echoes past | | Detroit Free Press
SACRAMENTO, Calif. -- As Derald Granberg follows the legal challenge to Proposition 8 now before the California Supreme Court, he thinks back to 1966.

That year, in a case that divided Californians as much as same-sex marriage does today, the court overturned a voter-approved measure that had allowed housing discrimination based on race.

Granberg, now 80, recalls sitting in on meetings during which Thomas Lynch, then California's attorney general, decided to challenge the measure.

"Here's an attorney general who's so convinced that the right thing to do is to challenge something that's been approved by a 65% vote of the public," said Granberg, who was working back then as a lawyer in the attorney general's office. "To me, that was really politically courageous."

Just as Lynch did in the 1960s, Attorney General Jerry Brown is challenging a constitutional amendment approved by voters. But unlike the earlier case, Brown is relying on the state constitution, not the U.S. Constitution, to make his arguments for overturning Proposition 8.

Overwhelmingly approved by voters, Proposition 14 of 1964 invalidated the Rumford Act, which the California Legislature had passed a year earlier. The law had made it illegal for property owners to refuse to rent or sell to people because of their race. The ballot measure overturned the law.

Actor Ronald Reagan, who had opposed the federal Civil Rights Act of 1964, was a campaign spokesman.

"If an individual wants to discriminate against" African Americans "or others in selling or renting his house," Reagan declared, "he has a right to do so."

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Two years after Proposition 14 passed, the state Supreme Court struck it down, saying it violated the U.S. Constitution. The U.S. Supreme Court later upheld the decision.


Proposition 8 ended same-sex marriage in California last November. Brown is contending that the measure violates the California Constitution's inalienable rights to liberty and privacy that cannot be eliminated without compelling reasons.

He maintains those rights include the right to marry, which same-sex couples had for five months last year. That window opened after the state Supreme Court decided in May to invalidate Proposition 22 of 2000, which had banned same-sex marriage. That window closed when voters passed Proposition 8.

Legal experts note that while Lynch was able to cite protections guaranteed by the equal-protection clause of the U.S. Constitution in opposing Proposition 14, there is no right to same-sex marriage in federal law.

Brown instead is citing the California Supreme Court's decision to strike down Proposition 22 -- the same court decision that Proposition 8 overturned.

Gay-rights lawyers, the City of San Francisco and other local governments challenging Proposition 8 are making a different argument -- one with which Brown disagrees. They contend Proposition 8 is not an amendment to the state constitution but an illegal revision that the Legislature should have approved by a two-thirds vote before it was placed on the ballot.

The court is scheduled to hear oral arguments March 5 and render its decision within 90 days.

Whatever the outcome, opponents of Proposition 8 could face an uphill battle. Santa Clara University law professor Gerald Uelmen predicts the court -- six Republicans and one moderate Democrat -- will reject both arguments.

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But Erwin Chemerinsky, dean of the University of California Irvine School of Law, predicts the case will turn on whether the court believes Proposition 8 violated the state constitution by skirting the Legislature.


The California Supreme Court often defers to the will of the people. But in 1966, the court angered voters who had approved Proposition 14 when it reinstated the Rumford Act.

Named after Assemblyman William Byron Rumford, the first African American elected to any public office in northern California, the law was approved by the Legislature in 1963 and signed by Attorney General Brown's father, then-Gov. Pat Brown.

The Rumford Act ignited a voter backlash, and a year later, the California Real Estate Association put Proposition 14 on the ballot.

Despite a major mobilization by religious groups and liberals -- which helped fuel the Berkeley Free Speech Movement -- the initiative proved to be overwhelmingly popular. Its passage gave property owners "absolute discretion" in renting or selling.

As with Proposition 8, the passage of Proposition 14 was a bitter blow for opponents. The anger it provoked was so intense it was blamed for helping to ignite the 1965 Watts riots.

Lynch, newly appointed as attorney general to succeed Stanley Mosk after Mosk was nominated for the state Supreme Court, concluded that the initiative violated U.S. constitutional standards.

In overturning Proposition 14, the court ruled it violated federally guaranteed rights of equal protection found in the 14th Amendment to the U.S. Constitution. A year later, the U.S. Supreme Court upheld the ruling.

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In legal briefs filed in the current case, Proposition 8 opponents contend that if the California Supreme Court had treated Proposition 14 as an amendment deregulating property law -- and not as a revision -- "this state would surely have seen more constitutional initiatives removing state protections from racial minorities."


But Andrew Pugno, an attorney for the Yes on 8 campaign, argues that the two cases are different. Moreover, he notes, there is no federal right to same-sex marriage.

Pugno said gay-rights lawyers are resorting to the revision argument because they want to keep the case out of the federal courts, fearing it could reach the U.S. Supreme Court.

Jenny Pizer, senior counsel for Lambda Legal, one of the gay-rights groups involved in the case, said the federal issue has not been raised in the case because "this litigation is about California's rules." ....

1 comment:

chariotdrvr14 said...

The pro Prop 8 assertion that the two situations don't compare is pretty hollow... but it is based on their logic that being non white isn't a choice while being gay is.
I'm sure if you'd asked them back in 1966 they'd have invoked some other yet similar twisted logic; considering the fact that the majority of that crowd refuse to accept evolution or the 'big bang theory' as science it's kinda hard to second guess what parallel dimensional logic they're operating on.
I have faith that the state supreme court is going to correct voter bigotry.