Conference of Delegates May Consider Opposing Proposition 8

Friday, September 5, 2008

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Conference of Delegates May Consider Opposing Proposition 8

By STEVEN M. ELLIS, Staff Writer

The executive director of the Conference of Delegates of California Bar Associations said yesterday that the conference’s Board of Directors will consider an emergency request to add a resolution opposing a ballot initiative banning same-sex marriage at the board’s meeting the day before the conference begins later this month.

Laura Goldin told the MetNews that the board will consider adding the recently-proposed resolution to the conference’s agenda at the board’s meeting Sept. 25, but cautioned that the board will limit its consideration to compliance with the conference’s rules on emergency late filings, and will not address the resolution on its merits.

Proposed by the Bar Association of San Francisco and the Bay Area Lawyers for Individual Freedom, Resolution ELF-01-2008 would urge the conference’s constituent groups and the State Bar to “educate” voters that Proposition 8 on the November 2008 California ballot would change the California Constitution to discriminate against gays and lesbians by denying them a “fundamental civil right.”

The resolution would also urge voters be told Proposition 8 represents an attack on the judiciary’s responsibility to decide controversial issues by “outspoken groups who would change the organic nature of our government,” and that the proposition—by seeking to deny a “core element” of the Constitution to a select group—represents a revision to the state Constitution, rather than an amendment, which would be unconstitutional in the absence of a new constitutional convention and popular ratification.

The initiative, whose proponents have labeled it the “California Marriage Protection Act,” seeks to amend the state Constitution to provide that “only marriage between a man and a woman is valid or recognized in California.” Although given a higher profile after the California Supreme Court ruled in May that statutory prohibitions on same-sex marriage are unconstitutional, it was placed on the ballot as the result of efforts predating that decision.

Proponents of the resolution explained in an accompanying “Statement of Reasons” that opposition to the initiative was necessary because it “represents an unacceptable, discriminatory, and un-American assault on the principles of equal protection, judicial independence, federalism, and freedom…[which] cannot go unopposed by the bar.”

“Just as it would have been wrong to change the California Constitution to limit marriage to only couples of the same race following the Supreme Court’s historic decision in Perez v. Sharp (1948) 32 Cal.2d 711, it would be wrong now to change the Constitution to limit marriage to only couples of opposite sexes,” they wrote.

Goldin said she was not aware of any opposition to the resolution.

In order for the resolution to be considered when the conference meets from Sept. 26-28 in Monterey, proponents will need to convince the board under the conference’s rules governing emergency late filings that the resolution deals with a matter of substantial importance to the bar and the public.

Proponents will also need to show that events giving rise to the resolution occurred at a time effectively precluding the proponents from complying with normal filing deadlines, and that the resolution was presented for filing as soon as reasonably possible.

They will then need to show that the resolution’s subject matter will not otherwise be before the conference at its meeting, and that consideration of the resolution—in light of the conference’s previously scheduled business at the meeting—will not unduly restrict the time for consideration of other matters the board deems to be of equal or greater importance to the conference, the bar and the public.

If the board declines to add the resolution to the conference’s agenda, proponents will have the right to appeal the decision to the conference. However, they will need agreement by two-thirds of delegates present and voting at the conference before the resolution will be considered on the merits.