Civil Rights

One of the major 2009 civil rights issues was the upholding of Proposition 8 by the California Superior Court. At the November 2008 General Election, the voters approved Proposition 8, which provided that “only marriage between a man and a woman is valid or recognized in California .” This proposition had the affect of overturning the California Superior Court’s ruling in marriage cases that same-sex couples have a constitutional right to marry. The proposition did not affect domestic partnerships in California . Following the passage of Proposition 8 a number of lawsuits were filed against the state and state officials to overturn the measure, and arguing that Proposition 8 should not have retroactive effect on existing same-sex marriages. The court on November 13, 2008, asked Attorney General Jerry Brown for an opinion on whether the court should accept these cases for review and whether the measure should be suspended while they decide the case. On November 19th, the court accepted three lawsuits challenging Proposition 8 but denied the requests to stay its enforcement. The court asked for final briefs by January 5, 2009, and oral arguments were held on March 5, 2009.

On the legislative front, SR 7 (Leno) and HR 5 (Ammiano) were passed opposing Proposition 8 as an improper revision, not amendment, of the California Constitution and was not enacted according to the procedures required by Article XVIII of the California Constitution. These resolutions were a legislation statement and had no force or effect. On May 26th, the court on a 6-1 vote ruled in Strauss v. Horton was valid and enforceable from the moment it was passed. They did rule that their decision could not be applied to retroactively annul marriages that were transacted while the practice was legal in the state, making the 18,000 marriages occurring before the passage of the proposition valid.

Following the passage of Proposition 8, Arthur Smelt and Christopher Hammer filed a suit in the Southern Division of the United States District Court for the Central District of California in Orange County . In the case of Smelt vs. the United States of America , the Plaintiff argued that Proposition 8 and the Federal Defense of Marriage Act violated the Equal Protection clause in the United States Constitution. The United States Department of Justice has filed a motion to dismiss the case because the plaintiffs are married, and their challenges to the Federal Act pose a difficult set of questions. On July 15th, District Court Judge Carter dismissed the part of Smelt that challenged Proposition 8, finding that the plaintiffs, who are legally married in California , have no standing to challenge Proposition 8. The challenge to the Defense of Marriage Act, however, remains intact; the remainder of the case was heard on August 3, 2009 in Orange County District Court. The lawsuit was thrown out of a court because the two men had accidentally filed suit against the federal government in a state court, a technicality in which the suit must be re-filed.

On the day of Strauss v. Horton’s decision, the American Foundation for Equal Rights filed suit in the United States District Court for the Northern District of California to challenge the validity of Proposition 8. In August, Judge Vaughn Walker of the United States District Court for Northern California in San Francisco ordered a trial set for January 2010. In the meantime, several ballot initiatives have been submitted to overturn Proposition 8. The gay, lesbian, and transgender civil rights movement was given a positive boost with the enforcement of SB 54 (Leno) providing that a marriage between two persons of the same sex contracted outside the state would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in the state if the marriage was contracted prior to November 5, 2008. Also, SB 572 (Leno) designating May 22 of each year as Harry Milk Day, a day having special significance. Harvey Milk was the first openly gay person to be elected to public service in a major city, serving on the San Francisco Board of Supervisors from 1977-78 until he was assassinated. Also, Governor Schwarzenegger and First Lady Maria Shriver has inducted Harvey Milk into the California Hall of Fame in 2009.

Another civil rights piece of legislation which was enacted was SB 36 (Negrete McLeod) clarifying that the Unruh Civil Rights Act, which prohibits discrimination on the basis of sex, race, color, religion, ancestry, national origin, disability, or medical condition, and prohibits other forms of arbitrary discrimination in business establishments, does not impose liability when a business offers or confers a discount or other benefit to a consumer or prospective consumer because the consumer or prospective consumer has suffered loss of employment or reduction of wages. Also, the legislature enacted SCR 20 (Liu) encouraging the Department of Social Services, the Department of Corrections and Rehabilitation, the Foster Care Ombudsperson, schools, and other relevant organizations to distribute copies of the San Francisco Children of Incarcerated Parents Partnership Bill of Rights.

Civil rights legislation which were vetoed are SB 242 (Yee) which would have clarified that it would be a violation of the Unruh Civil Rights Act for a business to adopt or enforce a policy that requires, limits or prohibits the use of any language in or with the business unless the language is justified by business necessity and notification has been provided of the circumstances and the time when the language restriction is required to be observed, and of the consequences for its violation; AB 793 (Jones) which would have clarified when a cause of action accrues for the purpose of filing a claim of employment discrimination with respect to compensation; and AB 985 (De La Torre) which would have required a county recorder, title insurance company or other entity transferring of a deed or other written instrument relating to title in real property to provide the recipient with a document that will allow the recipient to remove the unlawful restrictive covenants and to create a public record which does not contain the restrictive covenant.