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In a heartbreaking defeat for the gay-rights movement, California voters put a stop to gay marriage on election day by voting in support of Proposition 8. Proposition 8 calls for the amendment of the California State Constitution. Its aim: overturning a California Supreme Court decision and eliminating same sex marriage. Senior legal counsel for LAMBDA Jenny Pizer believes, “it’s not okay for the majority to vote on whether the minority should have rights.”

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California bans same sex marriage
Producer: Zaa Nkweta

ZAA NKWETA (VOICEOVER), TRNN: In a heartbreak defeat for the gay rights movement, California voters put a stop to gay marriage this Tuesday by voting in support of Proposition 8.

ROBIN TYLER, LGBT RIGHTS ACTIVIST: The anguish that our community feels nationally is overwhelming. And we are not going to take this lightly, and we are not going to go away.

NKWETA: Proposition 8 calls for the amendment of the California State Constitution. Its aim: overturning a California Supreme Court decision and eliminating same-sex marriage. Senior legal counsel for Lambda Jenny Pizer believes the issue of same-sex marriage should not be a ballot question.

JENNY PIZER, SENIOR LEGAL COUNSEL, LAMBDA: The way our system of government is supposed to work, the majority doesn’t take a vote on whether the minority should have the same rights that the majority enjoys. That’s what the equal protection guarantee is supposed to do. Everybody should have the same, equal rights. That’s what the equal protection clause is about; that’s what it’s supposed to guarantee. It’s not okay to be having the majority vote on whether the minority should have rights, and a constitutional democracy does not permit that kind of a vote. And that’s why we’ve filed a lawsuit and we’re going to be arguing about this in the California Supreme Court.

NKWETA: California’s Constitution can be changed in two ways. An amendment or small change requires a number of signatures that equals five percent of the previous gubernatorial election and a public vote. Approval is then granted by obtaining a majority plus one vote. A revision—a more substantive fundamental and structural change—requires legislative approval of both Houses by a supermajority before going to the voters for approval.

PIZER: The reason we have these two different systems is: when we have major, important elements of the Constitution, they’re intended to endure, to be stable, and not to be readily changeable on a whim, because otherwise we don’t really have a constitution—it doesn’t serve the function of being a constitution, which is to set a structure that has staying power. If you’re going to change equal protection that way, you’ve really changed something fundamental in our Constitution. That’s the argument: it should be seen as a revision.

NKWETA: Despite the amendment receiving a 52 percent vote in support of Proposition 8, the final count from absentee ballots is still to be determined. Jenny Pizer believes the manner in which the issue of gay marriage was framed during the election was troubling.

PIZER: The campaign that was waged against gay people in order to push people to vote for Proposition 8 had some very disturbing, misleading aspects to it. We tried to explain this doesn’t have anything to do with education policy. It’s not true, as the Prop 8 people said, that this is going to require that there will be certain things about marriage taught to elementary-age children. I mean, that’s just not true; there’s no such requirement. And it’s just not true that churches will be at risk for becoming taxed, for losing their tax-exempt status, if they refuse to perform marriages for gay and lesbian couples. That’s nonsense. But these things were said with these advertising campaigns that were bankrolled—millions and millions of dollars of advertising that scared people.

NKWETA: Despite an uphill battle, Pizer is confident in the principle of her legal argument.

PIZER: We all actually have a shared commitment, a shared need to have that equality guarantee enforced. A creation of an exception, which is really a tearing of the equal protection fabric, is such a big change that it should be seen as a revision, not an amendment. And therefore what was done with Prop 8 was not valid and should be tossed out. And if the people who are so passionately concerned about whether other people get to marry each other, if they really want to try again, that they should try again, but they should use the correct procedure.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Jennifer C. Pizer is Senior Counsel for Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and people with HIV.

Based in Lambda's Western Regional Office in Los Angeles, Pizer has handled cases to advance domestic partner protections and the rights of lesbian and gay parents, and to end sexual orientation discrimination in employment, education, health care and housing. Pizer also is a leading voice for ending marriage discrimination against lesbian and gay couples and currently serves as co-counsel for 15 same-sex couples, Equality California, and Our Family Coalition in the California Marriage cases. Pizer is an adjunct professor at USC Law School and Loyola Law School. Prior to joining Lambda Legal, she was associated with Townsend and Townsend and Crew LLP in San Francisco for five years. Before entering private practice, Pizer was legal director of the National Abortion Rights Action League and served as a federal judicial clerk. She is a 1987 graduate of New York University School of Law, and a 1982 graduate of Harvard College.