Attorney Dennis Herrera explains why he's confident he can convince CA to send Prop 8 Packing

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By Tracy Clark-Flory

What are the key arguments that will be made in the legal challenge to Proposition 8?

Well, for us, it's really quite simple. We're saying that the process for putting Prop. 8 on the ballot was fundamentally flawed; the proper procedure was not a constitutional "amendment" but a constitutional "revision." For the electorate to change the nature of the equal protections clause of the California Constitution, it would require a constitutional revision. That means that you need a two-thirds vote of the Legislature before you can even put it on the ballot -- that's not what happened in November. Prop. 8 was instead treated as a constitutional amendment and brought directly to the voters.

Prop. 8 also drastically altered the structure of state government; it stopped the courts from applying the equal protection clause of the California Constitution to a protected class of citizens, those being gay folks.

How is it even up for debate whether Proposition 8 should have required a constitutional revision, when the Supreme Court ruled in May that marriage is a fundamental right?

There isn't a heck of a lot of case law on what constitutes a revision versus an amendment in California. But, because there is a fundamental right at issue that involves a protected class of citizens, we're saying you can't make these changes through the amendment process.

What is the strongest argument Proposition 8 backers have against you?

There isn't a lot of jurisprudence in this area. What they have been saying all along is, "Oh, well, this goes against the will of the voters." That's a politically attractive argument, but it ignores that we have a representative democracy, not a direct democracy. The courts are empowered to make determinations about who's entitled to constitutional protections and, sometimes, they are called upon to ensure that the minority is free from the tyranny of the majority.

If the court doesn't strike down Proposition 8, should we worry that any minority right could be taken away by a simple majority of voters?

Yes, it's a distinct possibility. If the courts aren't allowed to be the arbiters of what equal protection under the law means, what do our constitutional guarantees mean? In that case, any politically disfavored group in the future -- women or other minority groups -- could have their rights taken away by an adroit and effective political campaign. I don't think that was what was envisioned when we created our constitution in California.

What would a loss in this case mean for the 18,000 couples who married during the four months gay marriage was legal in the state?

The court will most likely render an opinion on that. It's our position that there's no language in Prop. 8 that says it was retroactive, so those marriages are valid.

http://www.salon.com/news/feature/2009/03/...ents/index.html

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What is the strongest argument Proposition 8 backers have against you?

There isn't a lot of jurisprudence in this area. What they have been saying all along is, "Oh, well, this goes against the will of the voters." That's a politically attractive argument, but it ignores that we have a representative democracy, not a direct democracy. The courts are empowered to make determinations about who's entitled to constitutional protections and, sometimes, they are called upon to ensure that the minority is free from the tyranny of the majority.

Isn't that why the last attempt to ban gay marriage was overruled?

[fozzie 41]

They were sneaky when they put it on the ballot.

Its weird, I watched Milk for the first time recently and found the paralells disturbing. What is missing for the gay rights groups now is a face, someone to make it their personal crusade and to go toe to toe with the church leaders and politicians that back prop 8. Hopefully they won't get shot this time.

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They were sneaky when they put it on the ballot.

...What is missing for the gay rights groups now is a face, someone to make it their personal crusade and to go toe to toe with the church leaders and politicians that back prop 8....

You rang?