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Prop. 8 opens door to all discrimination, foes say

March 5, 2009 | 10:13 am

Lanow_prop8ontrial_3 There is nothing more fundamental than the equal protection doctrine, a lawyer insisted to the California Supreme Court today in casting Proposition 8 as an unconstitutional deprivation of the right to marry targeted against gays.

"This is the first time a ballot initiative will have been used to take away a fundamental right from a suspect class," Raymond C. Marshall of the Asian Pacific American Legal Center said in urging the state high court to strike down Proposition 8 as discriminatory.

Opponents of the November ballot initiative, which won a narrow majority and redefined legal marriage as only between a man and a woman, argued before the seven justices in San Francisco that if they uphold the measure, there would be nothing to prevent the majority from voting to deprive any other minority of fundamental rights.

The anti-Proposition 8 lawyers, who got the floor first during today's  hearing, disputed that the constitutional amendment that reinstated the death penalty was analogous. While opponents of capital punishment argued that executions constitute cruel and unusual punishment, their failure to prevail in getting the amendment invalidated didn't endanger any one group of people over the rest, as Proposition 8 does, Marshall argued.

Michael Maroko, another anti-Proposition 8 speaker, told the justices that "if the state stuck its finger into the marriage business, it should do it equally.... If gay couples don't have the right to marry, straight couples shouldn't either."

Chief Justice Ronald M. George asked those seeking a  ruling that Proposition 8 was an illegal constitutional revision if their basic problem wasn't that "it's just too easy to amend the California constitution," noting it has been changed more than 500 times, compared with 27 amendments to the U.S. Constitution.

George seemed to signal that the justices' hands may be tied in invalidating ballot initiatives -- such as Proposition 8 -- that amend the constitution. "That is the system we have to live with until and unless it is changed," the chief justice told the initiative opponents.

-- Carol J. Williams

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