City of Davis to Vote To Join Amicus Brief To Petition Court to Invalidate Proposition 8

As a consent agenda item for Tuesday's Davis City Council meeting, the Davis City Council will likely unanimously support a resolution to join an amicus brief petition to the Supreme Court to invalidate Proposition 8. Davis will join a growing list of cities that lack the resources to directly sue to challenge the adoption of Proposition as as the City and County of San Francisco, Santa Clara County and the City of Los Angeles did the day after the election.

On November 5, 2008 San Francisco City Attorney Dennis Herrera joined Los Angeles City Attorney Rocky Delgadillo and Santa Clara County Council Anne Ravel in filing a petition for a writ of mandate with the California Supreme Court to invalidate Proposition 8, an initiative constitutional amendment that intends to strip gay and lesbian citizens of their fundamental right to marry in California.

According to Davis' City Staff Report:

The petition argues that since Proposition 8 emanates from an initiative petition it is invalid because it effects a revision rather than an amendment to the constitution. The initiative process may propose only amendments not revisions. For this reason the petition asks the Supreme Court to invalidate Proposition 8.

Numerous other cities and counties have since joined this action.

This is not the first time the city of Davis has gotten involved in this issue. According to the City Staff report, in October of 2007,

"the city of Davis joined in an amicus curiae brief written by Stephen Lewis of the West Hollywood City Attorney's Office, that cities and counties filed in support of San Francisco in the Marriage cases in which the California Supreme Court struck down the ban against same sex marriages relying on due process, equal protection and privacy grounds. In re Marriage Cases 43 Cal. 4th 757 (2008). Mr. Lewis will again be authoring an amicus curiae brief in support of Petitioners position in this case. The amicus curiae brief will be due on January 15, 2008. The Council also passed a resolution against Proposition 8 in September of this year."

San Francisco City Attorney Dennis Herra wrote the following upon the filing of the suit on November 5:

"The issue before the court today is of far greater consequence than marriage equality alone. Equal protection of the laws is not merely the cornerstone of the California Constitution, it is what separates constitutional democracy from mob rule tyranny. If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority -- even for protected classes based on race, religion, national origin and gender. The proponents of Prop 8 waged a ruthless campaign of falsehood and fear, funded by millions of dollars from out-of-state interest groups. Make no mistake that their success in California has dramatically raised the stakes. What began as a struggle for marriage equality is today a fight for equality itself. I am confident that our high court will again demonstrate its principled independence in recognizing this danger, and in reasserting our constitution's promise of equality under the law."

The staff report on the Council Agenda includes the following information provided by Burk Deventhal, who is Deputy City Attorney for San Francisco.

"The petition argues that the California Constitution does not allow a bare majority of voters to use the amendment process to divest a politically disfavored group of its fundamental right under the California Constitution to equal protection of the laws. Such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment. Article XVIII of the California Constitution provides different vehicles for amending and revising the Constitution. Article XVIII allows a solitary citizen, without any public deliberation or review, to draft and circulate an initiative petition to amend the Constitution. But, only the Legislature or a constitutional convention of popularly elected delegates may submit proposed revisions to the Constitution. And the Constitution further circumscribes even the Legislature's power to submit to the voters either a proposed a constitutional revision or a proposal to call for constitutional convention. In either case the Constitution requires a 2/3 vote of both houses of the Legislature.

Proposition 8 provides a compelling example of the reason for the California Constitution's distinction between proposed amendments and revisions. The Constitution requires substantially more process receding the submission to the electorate of revisions because the consequences of a revision can be so much more pervasive and far reaching than the consequences of mere amendments. Proposition 8 is such a pervasive and far reaching measure. Not only does it strip from an unpopular minority its fundamental right to equal protection by enshrining discrimination in the Constitution. Proposition 8 also prevents the courts from exercising their historically significant power to protect unpopular minorities from discrimination. For that reason we argue that a bare majority of the voters without the benefit of the process that precedes a revision may not approve such fundamental and pervasive changes as those proposed in Proposition 8."

This is the issue that was talked about directly after the election the fact that with the court's definition of this issue as a substantive right, the question of whether a simple majority of the public can vote to deny someone of a substantive right--or would such an action require a two-thirds vote of the state legislature as well.

Supporters of Proposition 8, argue that this is simply a matter of majority rule and that the majority has spoken. I have great support for democratic principles of majority rule, however, I do not believe that the majority can vote to take away rights of the people. The produces a tyranny of the majority.

James Madison wrote in Federalist Paper 51:

"It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

Madison continued with the solution to this quandary:

"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

Our system of checks and balances were intentionally designed to thwart the tyranny of the majority. However, the founders realized that was not sufficient and thus they developed the Bill of Rights to further protect the rights of people against the inclination of the majority to take away rights from the minority. In Marbury vs. Madison, the court recognized the need for judicial review and since that point the courts have sporadically been used as a check against the tyranny of the majority whether it be a majority of government official or a majority of the voters.

The court faces three questions.

1. Is Proposition 8 invalid because it constitutes a revision of, 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 the adoption of Proposition 8?

The city's resolution is very basic suggesting that the voters passed Proposition in November of 2008, a number of entities have filed suit to stop it, the city of Davis joined in an amicus petition in October of 2007 and passed resolution against Proposition 8 in September of 2008, and finally the City and County of San Francisco is asking for communities to consider joining an amicus petition.

"THEREFORE, BE IT RESOLVED by the City Council of the City of Davis that the City Attorney, on behalf of the city of Davis, is directed to participate in the filing of an amicus brief to join the challenge filed by the City and County of San Francisco, et al."

Remember according to the staff report, there is no fiscal impact to the city. Davis thus follows cities like Berkeley which chose not to actually sue because it has much more limited financial resources than San Francisco and Los Angeles.

I am less than certain that this should have been a consent agenda item, however, I do think this is something the city of Davis should do. Unlike resolutions against the war, Proposition 8 has a direct impact on the city, the county, and the citizens over whom the city governs. Moreover, joining in an amicus brief is more than a mere symbolic action. This seems like a no-brainer, although the 20% of the citizens who voted for Proposition 8 probably will not agree.

---David M. Greenwald reporting