Thursday, January 22, 2009


Nation's top civil rights groups and legal scholars agree: Invalidate Prop 8

(San Francisco, CA, January 21, 2009) In the last round of an expedited
briefing schedule, final briefs were filed today by both petitioners and
respondents in the lawsuits challenging Proposition 8. The briefs filed today
by the National Center for Lesbian Rights, Lambda Legal, and the ACLU
responded to the more than 60 amicus curiae, or "friend of the court," briefs
filed in the case last week.

Those amicus briefs highlight the extraordinary breadth of support for
Petitioners' argument that Proposition 8 is invalid. The supporters represent
the full gamut of California's and the nation's civil rights organizations and
legal scholars, as well as California legislators, local governments, bar
associations, business interests, labor unions, and religious groups.

In amicus briefs filed last Thursday, the nation's leading legal scholars argued
that Proposition 8 is invalid because it seeks to eliminate a fundamental right
only for a targeted minority, which cannot be done through the initiative
process. Professors from the most prominent universities and law schools in
California and the country authored briefs urging the Court to invalidate
Proposition 8, including scholars from Harvard University, Stanford University,
Yale University, University of California (Berkeley, Los Angeles, Hastings,
Davis, Irvine), University of Southern California, University of Pennsylvania,
Rutgers University, University of San Francisco, Loyola Law School, Santa
Clara Law School, Chapman University, and Pepperdine University.

A brief authored by Hastings Law Professor Donna Ryu and joined by 20
constitutional law experts, argued: "Proposition 8 represents the first time
that the California initiative process has been wielded to abolish a
fundamental freedom for an unpopular minority group and to alter the
Constitution so as to mandate governmental discrimination against that
group. In this way, Proposition 8 attempts to breach some of the most
elemental textual and structural promises of our state Constitution. It revokes
a fundamental right that, in the words of the Constitution, is "inalienable." It
dismantles constitutional equality for a single group of Californians – a group
that, because of its history of oppression and stigma, is entitled to the
highest level of constitutional protection against discrimination."

Another brief authored by Professor Karl Manheim, one of the foremost
authorities on California's initiative process, stated: "Proposition 8 . . .
improperly attempts to revise the Constitution by taking the unprecedented
step of singling out a suspect class and depriving that class – and only that
class – of a fundamental right."

On January 15, 2009, 43 friend-of-the-court briefs urging the Court to
invalidate Prop 8 were filed, arguing that Proposition 8 drastically alters the
equal protection guarantee in California's Constitution, and that the rights of
a minority cannot be eliminated by a simple majority vote.

Other briefs supporting the legal challenge to Prop 8 were filed on behalf of
65 current and former California legislators; dozens of bar associations, legal
aid organizations; and numerous California municipal governments.

In May of 2008, the California Supreme Court held that laws that treat people
differently based on their sexual orientation violate the equal protection
clause of the California Constitution and that same-sex couples have the
same fundamental right to marry as other Californians. Proposition 8
eliminated this fundamental right only for same-sex couples. No other
initiative has ever successfully changed the California Constitution to take
away a right only from a targeted minority group. Proposition 8 passed by a
bare 52 percent on November 4.

The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this
challenge on November 5, representing Equality California, whose members
include many same-sex couples who married between June 16 and November
4, 2008, and six same-sex couples who want to marry in California. The
California Supreme Court has also agreed to hear two other challenges filed
on the same day: one filed by the City and County of San Francisco (joined
by Santa Clara County and the City of Los Angeles, and subsequently by Los
Angeles County and other local governments); and another filed by a private
attorney. These three cases are jointly under review by the California
Supreme Court.

Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU
are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick,
Herrington & Sutcliffe LLP.

On November 19, 2008, the California Supreme Court granted review in the
legal challenges to Proposition 8, and established an expedited briefing
schedule, under which briefing was completed on January 21, 2009. The
California Supreme Court has stated that it may schedule oral argument as
early as March 2009.

The case is Strauss et al. v. Horton et al. (#S168047).

For a complete list of organizations filing amicus briefs, visit,, and

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