Democratic legislators ask state Supreme Court to void Prop. 8

Assembly Speaker Karen Bass, Senate President Pro Tem Don Perata and incoming President Pro Tem Darrell Steinberg signed the friend of the court brief, filed with the state Supreme Court.

No Republican legislator signed the petition, though Gov. Arnold Schwarzenegger, a Republican, denounced the anti-gay marriage measure in a television appearance over the weekend.

With almost 11 million ballots tallied, Proposition 8 had 52.3% of the vote to 47.7%. Although many ballots remain to be counted, the 500,000-vote spread is viewed as insurmountable.

"The citizens of California rely on the Legislature and the courts to safeguard against unlawful discrimination by temporary, and often short-lived, majorities," the legislators said in the document, written by attorneys at the firm Gibson, Dunn & Crutcher.

"Our state's few deviations from this duty have proven, with the perspective of historical distance, to be the most abhorrent chapters in our state's history."

"This is a Hail Mary, no question about it," said Frank Schubert, manager of the Proposition 8 campaign.

Atty. Gen. Jerry Brown's office would be obligated to defend the initiative. But Schubert said that if the high court agrees to hear the case, backers of the initiative would seek to intervene to defend it.

In their brief, lawmakers described the 500,000-vote margin as a "bare majority," and said it was "compromising the enduring constitutional promise of equal protection under the law."

"Proposition 8 seeks to effect a monumental revision of this foundational principle and constitutional structure by allowing a bare majority of voters to eliminate a fundamental right of a constitutionally protected minority group," the brief says.

"If Proposition 8 takes effect, this court will no longer be the final arbiter of the rights of minorities," it continues.

The action contends that the ban, created by the initiative that defines marriage as being between one man and one woman, cannot be done by a mere constitutional amendment. Rather, it must be done by a revision of the entire Constitution and the Legislature would have to be involved.