A number of groups have launched legal action following the vote in favour of Proposition 8, which will bar same-sex marriage in California.
The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights have filed a writ petition before the California Supreme Court urging the court to invalidate Proposition 8 if it passes.
A suit challenging the measure is also planned by the City of San Francisco, while a third action is to be filed by one of the couples that were married under current same-sex marriage rights.
While Proposition 8 has currently received 52% of the referendum votes in its favour, a number of precincts and outstanding postal and absentee ballots have still yet to be included in the final tally.
These are, however, not expected to make a significant difference in the count and the measure is expected to be passed.
Proposition 8 will amend the Californian state constitution to define marriage as only being between a man and a woman. This will invalidate the legalisation of same sex marriage by the California Supreme Court earlier this year.
Around 18,000 same-sex couples are currently married in the state. California’s attorney general Jerry Brown has said, however, that these marriages would remain recognised by the state as he does not believe that Proposition 8 retroactively applies to same-sex couples that are already married.
He said that he also believed that his position would stand up in court.
“I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval before the election would be a just result,” Brown said.
The groups have filed the action on the basis that Proposition 8 is invalid because it is an improper “attempt to undo the constitution’s core commitment to equality by eliminating a fundamental right from one group – lesbian and gay Californians.”
They also say that Proposition 8 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 organising principles of state government cannot be made by simple majority vote, but instead must, at a minimum, go through the state legislature first; which did not happen with Proposition 8, claim the groups.
“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,” said Jenny Pizer, a staff attorney with Lambda Legal.
“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. That’s too big a change in the principles of our constitution to be made just by a bare majority of voters,” she said.
Citizens in Arizona and Florida also voted to amend their states’ constitutions on Tuesday in order to bar same-sex marriage. In Arkansas, a measure which aimed to stop lesbian and gay couples from adopting children was passed by 62 percent of the voters.
Massachusetts and Connecticut are now the only states in the US to allow same-sex marriage.