Catherine Lhamon, the Racial Justice Director of the American Civil Liberties Union of Southern California, today urged the Los Angeles County Board of Supervisors to file suit or join an existing lawsuit to overturn Proposition 8. Here is her statement:
Good morning. I am Catherine Lhamon, Racial Justice Director of the ACLU of Southern California. I urge this board to file suit or join an existing suit to challenge the constitutionality of Proposition 8.
The very title of Proposition 8 states its constitutional defect. Its title is, '''Eliminates the Right of Same-Sex Couples to Marry.' Proposition 8 takes away what our constitution guarantees as a fundamental right. It works a breathtaking diminution of the value of our constitution itself: by allowing voters to completely revise core constitutional principles, Proposition 8 sets a dangerous precedent that all our constitutional protections ''' the right to free speech, the right to equal protection of the law, and others ''' exist only for so long as majorities vote yes on them. If it stands, it will suggest that any fundamental rights can be revoked on a bare majority vote, regardless of what our constitution otherwise guarantees.
Our system of checks and balances does not give the voting majority the right to write out of the constitution those core principles enshrined in it. Our system of checks and balances is based on the principle that the constitution sets the baseline for all our most fundamental rights, and a simple majority of voters cannot take those away. Proposition 8 is unconstitutional and will be overturned in court; this county should be on the right side of history, saying that we will not be part of official discrimination.
As much as I am professionally interested, as Racial Justice Director of the ACLU of Southern California, in ensuring equal opportunity for all people, this issue is also deeply personal for me. My parents married in Washington, D.C., rather than in Virginia, where my mother was raised, because in 1966 Virginia still outlawed interracial marriage. My mother, who is black, could not at that time marry my father, who is white, in her home state. The United States Supreme Court outlawed race-based marriage restrictions the following year in Loving v. Virginia. I was raised in the shadow of Supreme Court decisions like Loving, and like Brown, that held that equal protection applies to all persons, and that promised a new day of meaningful opportunity for people like me. If an electorate can, through the tyranny of the majority vote, wipe away such fundamental constitutional protections as the right to equal protection for all persons, then we as a state are returning to the bad old days of institutionalized discrimination that I never thought I would see in my lifetime. I urge this board to do what is right and to work, through a lawsuit, to protect all Californians.

SAN FRANCISCO - The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court on Nov. 5, 2008 urging the court to invalidate Proposition 8. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group - lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn't happen with Proposition 8, and that's why it's invalid.

'If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw - it removes a protected constitutional right - here, the right to marry - not from all Californians, but just from one group of us,' said Jenny Pizer, a staff attorney with Lambda Legal. 'That's too big a change in the principles of our constitution to be made just by a bare majority of voters.'

'A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution,' added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

The lawsuit was filed in the California Supreme Court on behalf of Equality California and six same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.

The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.

'Historically, courts are reluctant to get involved in disputes if they can avoid doing so,' said Shannon Minter, Legal Director of NCLR. 'It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Prop 8 has passed, the courts will have to weigh in and we believe they will agree that Prop 8 should never have been on the ballot in the first place.'

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the 'Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.' That measure was invalid because it improperly attempted to strip California's courts of their role as independent interpreters of the state's constitution.

The groups issued a statement of their conviction, which is shared by the California Attorney General, that the state will continue to honor the marriages of the 18,000 lesbian and gay couples who have already married in California. A copy of the statement as well as the writ petition filed today is available at the ACLU Lesbian and Gay Rights Project, the Lambda Legal, and the National Center for Lesbian Rights.

In addition to the ACLU, Lambda Legal and NCLR, the legal team bringing the writ also includes the Law Office of David C. Codell; Munger Tolles & Olson, LLP; and Orrick, Herrington & Sutcliffe, LLP.

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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.

San Bernardino County agreed today to institute policies that accommodate the First Amendment right to wear religious head scarves in jail.
The agreement was reached after the American Civil Liberties Union and the ACLU of Southern California sued San Bernardino County in U.S. District Court in December 2007 on behalf of a 29-year-old Muslim woman who was forced by county sheriff's deputies to remove her religious head covering while in custody in San Bernardino County's West Valley Detention Center.
'We're very pleased that San Bernardino County has agreed to changes that respect people's religious beliefs while still keeping the jails safe. One of our country's core values is the freedom to practice our religion,' said Ariela Migdal, staff attorney for the ACLU Women's Rights Project. 'That freedom doesn't go away even when we are in jail or prison.'
Under the settlement agreement, the county agreed to adopt a policy to accommodate women who wear head scarves for religious reasons. Under the new policy, women who are arrested will not be required to remove religious head coverings in the view of male officers and will be provided with temporary head scarves to wear while they are in custody. The county will train police officers on the new policy and has designated a point-person to handle any disputes or complaints that arise regarding the policy's implementation.
Jameelah Medina of Rialto, California was arrested at the Pomona station of Metrolink's commuter rail system on December 7, 2005, for having an invalid train pass. She was taken to the West Valley Detention Center in Rancho Cucamonga for processing. Despite her repeated requests to keep her head covered during her day-long incarceration, Medina was forced to remove her head scarf in the presence of men she did not know, and to remain uncovered for much of the day.
Medina, who was born in the United States and raised in a Muslim family, wears a head scarf known as a hijab to cover her hair, ears, neck and part of her chest. Many Muslim women, like Medina, believe that they should be covered at all times in the presence of men who are not members of their immediate family.
'I'm happy that other women in jail will no longer be humiliated by being forced to take off their hijabs in front of strange men,' said Medina. 'For a long time I struggled over doing anything about what happened to me because I was embarrassed about being arrested and put in jail, but I finally decided that doing something about the injustice was far more important.'
Medina was never prosecuted in connection with this arrest.
San Bernardino joins other law enforcement agencies across the country, including federal prisons, in having procedures that allow Muslim women to wear the hijab while in custody.
'San Bernardino saw that there's no conflict between the needs of law enforcement and freedom of religion,' said Hector Villagra, Director of the Orange County office of the ACLU of Southern California, who filed a similar case in 2007 in the city of Orange. 'We expect that other law enforcement agencies do the same.'
The attorneys on the case are Migdal and Lenora Lapidus of the national ACLU Women's Rights Project, Villagra of the ACLU of Southern California Orange County office and Daniel Mach of the ACLU Program on Freedom of Religion and Belief.