Some of the most contentious ballot issues decided by voters last week, from bans on same-sex marriage and affirmative action to approval of stem-cell research and medical marijuana, will likely trigger new litigation.
A few of the most divisive of the 153 state ballot measures nationally are expected to be back in state courts soon, and, in the case of California’s constitutional amendment banning same-sex marriage, two lawsuits were filed before noon on Nov. 5, even though the outcome of that vote was still in question.
San Francisco, Los Angeles and Santa Clara County joined forces in a petition with three civil rights groups before the California Supreme Court challenging Proposition 8 on equal protection grounds. The suit, Strauss v. Horton, No. S168047, seeks to invalidate the initiative as an illegal attempt to undo a fundamental state constitutional right — equality. The Lambda Legal Defense and Education Fund, the American Civil Liberties Union and the National Center for Lesbian Rights jointly filed the suit. The second suit was filed by Gloria Allred of Los Angeles’ Allred, Maroko & Goldberg on behalf of a lesbian couple claiming equal protection violations. Tyler v. Horton, No. S168066.
Andrew Pugno, general counsel for the “ProtectMarriage.com — Yes on 8″ campaign called the lawsuits “frivolous and regrettable.” The “same groups filed an identical case with the California Supreme Court months ago, which was summarily dismissed,” he said.
Unlike Florida and Arizona, which also approved same-sex marriage bans, California’s Proposition 8 came after the state Supreme Court allowed same-sex marriage in a landmark decision in June, and 18,000 couples who married may face a legal limbo over retroactivity.
State Attorney General Jerry Brown said on Nov. 4 that he will enforce the ban on gay marriage if it passes, but also will resist efforts to retroactively invalidate the existing 18,000 same-sex marriages performed before the ban, should the close vote approve the measure.
Arguing against retroactivity
Opponents of Proposition 8 initially refused to concede until all uncounted ballots were tallied, but ultimately conceded on Nov. 6. Bobbie Wilson, who represented San Francisco in the four-year battle that led to the state Supreme Court decision, said traditionally for a law to be retroactive, it must be spelled out in the measure, which Proposition 8 did not do.
She said the other side argues that the measure recognizes only marriages between a man and woman, so retroactivity will be moot. That would create the legal situation of marriage licenses that are not recognized in California, but would be valid in places that have said they will honor same-sex marriage licenses, such as Canada, New York, Massachusetts and South Africa, said Wilson of Howard Rice Nemerovski Canady Falk & Rabkin.
In Nebraska, voters approved a constitutional ban on affirmative action practices in government contracting and education based on race, gender or ethnicity, as Initiative 242, similar to those passed years ago in California, Washington and Michigan.
David Kramer, campaign director in opposition to the measure and a partner at Baird Holm in Omaha, Neb., said there is a challenge pending before a state court judge that sought to have it removed from the ballot based on fraud, and a decision is expected any day. Hall v. Gale, No. CI08-4055 (Lancaster Co., Neb., Dist. Ct.).
“Litigation is likely to occur in Nebraska that will test the bounds of compliance with the measure,” he said. But it may also take unexpected twists.
Kramer said he anticipates that same-sex couples may use the nondiscrimination terms of the law to challenge denial of equal benefits to same-sex couples.
Arkansas voters approved Initiative 1, banning cohabiting couples from adopting children. It grew out of a 2006 state court decision striking down a regulation banning adoptions by same-sex couples.
Jennifer Ferguson, deputy director of Arkansas Advocates for Children and Families, which opposed the measure, has already spoken to lawyers about the potential of a legal challenge. “Right now we’re just starting to look at it. We’ll know more in a couple weeks,” she said.
Michigan voters approved two controversial measures: use of medical marijuana and of stem cells for research.
Traditionally, law enforcement officials resist enforcement of these voter-approved medical marijuana measures, and it take years of litigation to win compliance, said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws.
This article originally appeared online Nov. 6.
