Another wave of legal arguments filed over California's Proposition 8

By Howard Mintz, Mercury News

Another wave of legal arguments hit the California Supreme Court on Monday in the battle over Proposition 8's ban on same-sex marriage.

Local governments, led by San Francisco and Santa Clara County, filed their latest opposition papers to Proposition 8, describing the voter-approved initiative as a "dark moment'' in California history. The brief is an attempt to refute the legal arguments of Proposition 8 backers as the Supreme Court weighs a challenge from government officials, civil rights groups and same-sex couples who are seeking the right to marry.

The San Francisco brief sides with the unique argument raised in December by Attorney General Jerry Brown, who argues that voters did not have the authority to strip away a fundamental constitutional right when they approved Proposition 8 in November. Brown, who ordinarily would be forced to defend state law, argued in his December brief that the state Supreme Court's decision last spring striking down California's prior gay marriage ban established that fundamental right to marry.

Proposition 8 supporters, represented by former Whitewater prosecutor and Pepperdine law school dean Kenneth Starr, also responded with fresh legal arguments Monday, calling Brown's argument an attempt to "declare a constitutional revolution."

"The attorney general's theory would fundamentally alter the role of the California judiciary," Proposition 8 backers wrote. "It would, in brief, constitute the
California judiciary as the supreme overseer of the people's use of their constitution-making power."

A series of lawsuits was filed shortly after the election, challenging Proposition 8 as an invalid method of amending the California Constitution. Proposition 8 supporters insist the law is valid, and that the Supreme Court does not have the right to topple the will of the voters.

The Supreme Court has set a deadline for final briefs to be filed by late January, and could hear the case as early as March. A decision could come by early summer. The court will decide the fate of the gay marriage ban, as well as the validity of thousands of same-sex marriages that have already taken place in the past six months.