Several organizations filed a writ petition before the California Supreme Court on Wednesday, asking that Proposition 8 be invalidated if the same-sex marriage ban passes.

Read the comments from our election day coverage on Prop. 8

Yes on Prop 8 passes

Attorneys ask Supreme Court to invalidate Prop 8

Prop. 8 opponents won't give up

With all California precincts reporting, the voter initiative amendment to define marriage as between a man and woman passed by about 500,000 votes, or 52.5 percent of the overall vote.

“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,” Jenny Pizer, a staff attorney with Lambda Legal, said in a news release.

“Proposition 8 suffers from the same flaw. It removes a protected constitutional right, the right to marry, not from all Californians, but just from one group of us.

“That's too big a change in the principles of our constitution to be made just by a bare majority of voters.”

Proposition 8 supporters dismissed the suit as absurd.

“These same groups filed an identical case with the California Supreme Court months ago, which was summarily dismissed. We will vigorously defend the People's decision to enact Proposition 8,” Andrew Pugno, general counsel of ProtectMarriage.com and the Yes on 8 campaign, said in a news release.

Attorney General Jerry Brown ended speculation about the legality of the 18,000 same-sex marriages conducted across the state since the state Supreme Court lifted the ban on June 17, saying the state would honor those licenses.

“This office will defend in court the marriages that have been contracted at the time that the right to same-sex marriage was the law of California,” Brown said at a news conference Wednesday.

The measure — which reads: “Only marriage between a man and a woman is valid or recognized in California” — will not be retroactive.

“The measure written by the Yes people was very simple, one sentence,” Brown said. “It did not say the measure was retroactive.

“Under precedents in California, in order for a civil statute to have retroactive applications, it must state specifically that it has that reach. Otherwise it's prospective.”

Most legal scholars believe the marriages will continue to be valid as laws are not retroactive. But attorneys who have argued on behalf of traditional marriage disagree.

Mathew D. Staver, founder of Liberty Counsel and Dean of Liberty University School of Law, told The Desert Sun last week he believed same-sex licenses would become invalid because amendments are retroactive.

Challenge expected

Constitutional law and civil rights experts had expected a challenge to the amendment if it passed, saying it dramatically changes the state constitution and should have required a convention.

The Supreme Court has yet to weigh in on the revision versus amendment issue. In July, the court declined to review a similar petition as was filed Wednesday. If the court had ruled Proposition 8 was a constitutional revision, it would have been removed from the ballot.

“Historically, courts are reluctant to get involved in disputes if they can avoid doing so,” Shannon Minter, legal director of National Center for Lesbian Rights, said in a news release.

“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 may pass, 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.”

Minter argued the same-sex marriage case before the California Supreme Court on behalf of the 14 couples and Equality California.

Same-sex marriage is an issue that resonates with many locally as the Palm Springs area boasts one of the largest gay populations per capita in the U.S. and is renowned for its gay-friendly businesses and events.

In May, California Supreme Court justices ruled 4-3 that the same-sex marriage ban voters approved in 2000 was unconstitutional.

Gays and lesbians have been legally marrying in the state since June 17. More than 1,200 gay and lesbian couples have married in the Coachella Valley.

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed the writ that charges that Proposition 8 is invalid because it unravels the constitution's “core commitment to equality for everyone by eliminating a fundamental right from just one group, lesbian and gay Californians.”

To date, California has had two cases in which the revision argument struck down an initiative, Brown said.

Legislators are already promising another ballot fight if the measure ultimately passes.

“I think it is plain wrong to write discrimination into the state constitution, and if Prop. 8 does pass, I would expect and I would look forward to helping lead an effort through the Legislature and ultimately back to the ballot to assure civil rights for all Californians,” said incoming Senate leader Darrell Steinberg, D-Sacramento.