SF City Attorney Dennis Herrera has filed suit (PDF) to halt the enactment of Proposition 8 eliminating the right of same-sex couples to marry. Paul Hogarth reviews the plaintiff's brief:
Prop 8 was not your typical "amendment" that merely tinkers with the California Constitution. It was a drastic revision that deprives a "suspect class" (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a "suspect class." If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of "change."
Santa Clara and LA County have joined the challenge.
Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an "amendment" – or a substantive "revision." And if it was a "revision," voter approval by a simple majority is not enough – it also requires an okay by the state legislature (which probably wouldn’t happen), or a constitutional convention. Why the distinction? Because mere "amendments" tinker around the edges; "revisions" are far more fundamental changes.
And the Courts have thrown out such changes to the Constitution as "revisions" under the right circumstances […]
Likewise, Prop 8 is a drastic "revision" (if not moreso) because it violates equal protection for a minority group.
Last May, the California Supreme Court found that depriving same-sex couples the right to marry violated equal protection – and that LGBT people are a "suspect class." A "suspect class" is a group that has suffered discrimination and needs protection. The central purpose behind equal protection is to protect unpopular minorities from a political majority who could take away their rights. You can’t simply change the Constitution by majority vote to take away the right of gay people to marry – because that right comes from the equal protection clause. As Herrera wrote in his brief, "without a judiciary that has the final word on equal protection, there simply is no such thing as equal protection."
It's too early to lay odds on the likelihood of success, but my initial read into this challenge is surprisingly optimistic. The legal foundation of the challenge is much stronger than I originally guessed.