On November 5, 2008, the day after Proposition 8 was approved by voters, the California ACLU affiliates joined with the National Center for Lesbian Rights, Lambda Legal Defense and Education Fund, Inc., and the law offices of David C. Codell, Munger, Tolles & Olson, and Orrick Herrington & Sutcliffe to file suit in the California Supreme Court to invalidate Proposition 8.

We argue that Proposition 8 is a revision to the California Constitution, rather than an amendment, and therefore cannot be adopted by a simple majority vote on an initiative. Revisions, unlike amendments, must be approved by a two-thirds vote of the legislature before being submitted to the voters or a constitutional convention. Our position is that Proposition 8 is a revision because it subverts the constitutional guarantee of equal protection, allowing a simple majority of voters to deprive a particularly vulnerable minority, such as LGBT people, of fundamental rights, and prevents courts from exercising their unique responsibility to uphold the equal protection rights of minorities.

Our case, Strauss et al. v. Horton et al., was consolidated with cases filed by other plaintiffs, including various individuals and a coalition of cities and counties. The California Supreme Court agreed to decide the case in the first instance, without waiting for lower courts to address the issue. The court placed similar cases, filed by other plaintiffs including various civil rights and religious organizations, on hold pending the outcome in Strauss and its companion cases.

The court allowed proponents of Proposition 8 to intervene in the case to attempt to defend its validity.

In its November 19 order, the court directed the parties to brief the following issues:

(1) Is Proposition 8 invalid because it is a revision rather than an amendment to the California Constitution?

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional , what is its effect, if any, on the marriages of same-sex couples performed before its adoption?

On Friday, December 19, 2008, the intervenors filed their brief and the state filed its brief.

Unsurprisingly, the proponents of Proposition 8 claim it is a valid amendment. They also argue that it retroactively invalidates marriages of same-sex couples performed before its adoption.

The state Attorney General argues Proposition 8 is invalid because the initiative process may not deprive persons of certain fundamental rights without a compelling justification, which is not present in this case. The state also argues that even if it is valid, Proposition 8 is not retroactive.

San Francisco'The National Center for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), and Lambda Legal filed a reply brief on Jan. 5 in the California Supreme Court, the next step in the lawsuit seeking to overturn Proposition 8, which passed by a mere 52 percent on Nov. 4.

The brief argues 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. The brief also agrees with California Attorney General Jerry Brown that certain fundamental rights, including the right to marry, are inalienable and can not be put up for a popular vote. The brief also argues 'again in agreement with the Attorney General'that Proposition 8 cannot be applied to invalidate existing marriages because new laws and amendments are presumed to apply only on a prospective basis.

"If Prop 8 is permitted to stand, it would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only from a historically targeted minority group," said NCLR Legal Director Shannon Minter. "Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights."

On Nov. 19, 2008, the California Supreme Court granted review in the legal challenges to Proposition 8, and established an expedited briefing schedule, under which briefing will be completed in Jan. 2009, with amicus curiae or "friend-of-the-court" briefs due on Jan. 15. Oral argument potentially could be held as early as March 2009.

Elizabeth Gill, a staff attorney with the ACLU, added "Prop. 8 is a radical and unprecedented change to the California Constitution that puts all Californians at risk. It actually mandates government discrimination against a minority."

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 would completely eliminate 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.

"Prop. 8 is not valid and never has been," said Jennifer Pizer, Lambda Legal National Marriage Project Director. " California's Equal Protection clause was not written in sand, to be erased by shifting political tides. It's a solid guarantee that we all have the same rights and it's the foundation of our government. Exceptions can't be carved by simple majority vote or the equality guarantee becomes a discrimination guarantee. No initiative can cause such a profound change in our legal system."

NCLR, Lambda Legal, and the ACLU filed this challenge on Nov. 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.

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

The American Civil Liberties Union is America's foremost advocate of individual rights. It fights discrimination and moves public opinion on LGBT rights through the courts, legislatures and public education.

Founded in 1998, Equality California celebrates its 10th anniversary in 2008, commemorating a decade of building a state of equality in California. EQCA is a nonprofit, nonpartisan, grassroots-based, statewide advocacy organization whose mission is to achieve equality and civil rights of all lesbian, gay, bisexual and transgender (LGBT) Californians.

LOS ANGELES, Calif. - The ACLU of Southern California and the law firm of Irell & Manella LLP along with Erwin Chemerinsky, dean of the University of California, Irvine School of Law, have jointly sued Laguna Beach over the affluent beach city's unconstitutional and inhumane policy of harassing, intimidating, citing and arresting disabled homeless people. The lawsuit - on behalf of certain homeless residents -- was filed today in federal district court in Orange County.

According to its official Web site, Laguna Beach features a "resort environment" that includes "picturesque beaches" and "blufftop walkways." But the city works hard to keep chronically homeless people who suffer from physical and mental disabilities out of these areas. In a long and deliberately coordinated campaign, officers of the Laguna Beach Police department wake and subject the homeless people to harassment, threats and intimidation; conduct unjustified stops of them that result in middle-of-the-night interrogations, demands for identification and warrant checks; and confiscate their property, among other punitive steps. The police have gone so far as to cite, fine and arrest homeless residents for nothing more than sleeping, an involuntary act.

"In Laguna Beach, there are more art galleries than city shelter beds for homeless people," said Mark Rosenbaum, legal director of the ACLU/SC. "Yet city leaders are criminalizing a group of people who struggle on a daily basis to cope with their mental illnesses or other disabilities, whether aware of them or not, and who are seeking no more than the comfort and values of this season within their community. This year, the role of Scrooge goes to these Laguna city leaders."

"When we were first asked to help the homeless with respect to the city's anti-sleeping ordinance, we thought the issue would be resolved quickly because the right answer is obvious," added Andra Barmash Greene, the managing partner of Irell & Manella LLP's Newport Beach office. "In observing the city's task force meetings during 2007 and upon reviewing the task force's recommendations -- which the City Council wholly adopted -- and following an initial discussion with city officials, we thought the city was headed in the right direction."

"Unfortunately, that turned out not to be the case. To date, the city has not rescinded the citations it issued against its homeless residents for sleeping, a basic human necessity, and it has not repealed its unconstitutional ordinance. Our clients were left with no alternative but to seek assistance from the courts," she said.

Erwin Chemerinsky, founding dean of the Donald Bren School of Law at UC Irvine and a co-counsel in the lawsuit, noted that "the conduct of city leaders in their treatment of mentally and physically disabled homeless people violates the clear mandate of the Constitution."

The lawsuit was filed after discussions over the last year between city officials and attorneys representing the homeless failed to yield necessary revisions to Laguna Beach's policy toward homeless persons. Earlier this year, the Laguna Beach City Council adopted recommendations from the city's own homeless task force -- whose members included the current and former city mayors - supporting better mental-health care and transitional housing services for homeless people. Unfortunately, the City Council has not acted on these recommendations, and decided instead to continue the criminalization of the homeless in Laguna Beach.

The city task force's report concluded that there are an estimated 45 to 55 homeless people living in Laguna Beach. More recent estimates put the figure as high as 70, but that is still less than .2 percent of the city's overall population - a relatively small number that the city should easily be able to address with appropriate services. Nearly all the homeless people in Laguna Beach meet the definition of "chronically homeless" who have mental or physical disabilities, the task force noted.

One plaintiff in the lawsuit suffers from epilepsy and often sleeps under a tree in a park. He has been awakened repeatedly by police shining flashlights in his face, and subsequently has been interrogated, checked for warrants and had his possessions searched without his consent. Intimidating wakeup calls such as this, despite the police's familiarity with his and other homeless residents' disabilities and chronic homeless status, have exacerbated his disability and that of other homeless residents of Laguna Beach.

"The policy of city leaders of Laguna Beach toward the homeless stands out in its mean-spiritedness and short-sightedness," said Hector Villagra, director of the Orange County office of the ACLU/SC. "It disregards homeless people's basic needs, and it is costly and ineffective. The city's task force noted studies showing that providing housing with services costs less than having homeless people on the streets."

The lawsuit does not seek to make sleeping in public places legal generally, but to enjoin the city from harassing and intimidating the homeless, particularly for the involuntary and necessary act of sleeping. The long-term solution is for the city to provide more shelter support and services that can help chronically homeless people get off the streets and into supportive environments where their disabilities can be treated. Currently there are no beds regularly available to the city's homeless residents, while the lone nonprofit rehabilitative center south of downtown Laguna Beach has limited sleeping space and strict rules that make it difficult for chronically homeless residents to qualify for one of its beds. In spite of this, the city recently withheld approval of permits for the relocation of a private resource center that tries to assist the homeless, and rejected the notion of a homeless outreach court within the city limits that would have enabled homeless residents to deal practically with infractions issued against them by the Laguna Beach Police Department.