SAN FRANCISCO - The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court on Nov. 5, 2008 urging the court to invalidate Proposition 8. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group - lesbian and gay Californians. Proposition 8 also 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 organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn't happen with Proposition 8, and that's why it's invalid.

'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. 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,' said Jenny Pizer, a staff attorney with Lambda Legal. 'That's too big a change in the principles of our constitution to be made just by a bare majority of voters.'

'A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution,' added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

The lawsuit was filed in the California Supreme Court on behalf of Equality California and six same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.

The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.

'Historically, courts are reluctant to get involved in disputes if they can avoid doing so,' said Shannon Minter, Legal Director of NCLR. 'It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Prop 8 has passed, the courts will have to weigh in and we believe they will agree that Prop 8 should never have been on the ballot in the first place.'

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the 'Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.' That measure was invalid because it improperly attempted to strip California's courts of their role as independent interpreters of the state's constitution.

The groups issued a statement of their conviction, which is shared by the California Attorney General, that the state will continue to honor the marriages of the 18,000 lesbian and gay couples who have already married in California. A copy of the statement as well as the writ petition filed today is available at the ACLU Lesbian and Gay Rights Project, the Lambda Legal, and the National Center for Lesbian Rights.

In addition to the ACLU, Lambda Legal and NCLR, the legal team bringing the writ also includes the Law Office of David C. Codell; Munger Tolles & Olson, LLP; and Orrick, Herrington & Sutcliffe, LLP.

###

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

The American Civil Liberties Union is America's foremost advocate of individual rights. It fights discrimination and moves public opinion on LGBT rights through the courts, legislatures and public education.

Founded in 1998, Equality California celebrates its 10th anniversary in 2008, commemorating a decade of building a state of equality in California. EQCA is a nonprofit, nonpartisan, grassroots-based, statewide advocacy organization whose mission is to achieve equality and civil rights of all lesbian, gay, bisexual and transgender (LGBT) Californians.

San Bernardino County agreed today to institute policies that accommodate the First Amendment right to wear religious head scarves in jail.
The agreement was reached after the American Civil Liberties Union and the ACLU of Southern California sued San Bernardino County in U.S. District Court in December 2007 on behalf of a 29-year-old Muslim woman who was forced by county sheriff's deputies to remove her religious head covering while in custody in San Bernardino County's West Valley Detention Center.
'We're very pleased that San Bernardino County has agreed to changes that respect people's religious beliefs while still keeping the jails safe. One of our country's core values is the freedom to practice our religion,' said Ariela Migdal, staff attorney for the ACLU Women's Rights Project. 'That freedom doesn't go away even when we are in jail or prison.'
Under the settlement agreement, the county agreed to adopt a policy to accommodate women who wear head scarves for religious reasons. Under the new policy, women who are arrested will not be required to remove religious head coverings in the view of male officers and will be provided with temporary head scarves to wear while they are in custody. The county will train police officers on the new policy and has designated a point-person to handle any disputes or complaints that arise regarding the policy's implementation.
Jameelah Medina of Rialto, California was arrested at the Pomona station of Metrolink's commuter rail system on December 7, 2005, for having an invalid train pass. She was taken to the West Valley Detention Center in Rancho Cucamonga for processing. Despite her repeated requests to keep her head covered during her day-long incarceration, Medina was forced to remove her head scarf in the presence of men she did not know, and to remain uncovered for much of the day.
Medina, who was born in the United States and raised in a Muslim family, wears a head scarf known as a hijab to cover her hair, ears, neck and part of her chest. Many Muslim women, like Medina, believe that they should be covered at all times in the presence of men who are not members of their immediate family.
'I'm happy that other women in jail will no longer be humiliated by being forced to take off their hijabs in front of strange men,' said Medina. 'For a long time I struggled over doing anything about what happened to me because I was embarrassed about being arrested and put in jail, but I finally decided that doing something about the injustice was far more important.'
Medina was never prosecuted in connection with this arrest.
San Bernardino joins other law enforcement agencies across the country, including federal prisons, in having procedures that allow Muslim women to wear the hijab while in custody.
'San Bernardino saw that there's no conflict between the needs of law enforcement and freedom of religion,' said Hector Villagra, Director of the Orange County office of the ACLU of Southern California, who filed a similar case in 2007 in the city of Orange. 'We expect that other law enforcement agencies do the same.'
The attorneys on the case are Migdal and Lenora Lapidus of the national ACLU Women's Rights Project, Villagra of the ACLU of Southern California Orange County office and Daniel Mach of the ACLU Program on Freedom of Religion and Belief.

LOS ANGELES, Calif. - A U.S. citizen who was illegally detained and twice deported to Mexico said immigration officials refused to believe his claim of citizenship, even when his mother traveled to the border to show Immigration and Customs Enforcement agents his birth certificate.

Guillermo Olivares of south Los Angeles was being held in a detention facility in San Diego earlier this month until an attorney for the American Civil Liberties Union of Southern California presented his birth certificate along with school and vaccination records to immigration authorities. Olivares was released later that same day.

'They didn't believe me,' a frustrated Olivares said of his numerous encounters with immigration officials. 'It seemed like there was nothing else I could do.'

Olivares' mother, Eduvina Romero, echoed his story, explaining that she and her son repeatedly showed border immigration officials his birth certificate, to no avail. 'They would never listen. It felt so unfair that they could simply disbelieve my son's citizenship without giving us any chance to prove that what we said was true. It made me panicked and anxious,' she said. 'I just wanted my son to be able to come home.'

Olivares is not the first U.S. citizen to be illegally deported. Pedro Guzman of Lancaster was deported to Mexico in 2007 and spent nearly three months lost in that country while family members desperately searched for him. In addition, Sens. Edward Kennedy of Massachusetts and Robert Menendez of New Jersey recently sponsored the Protect Citizens and Residents from Unlawful Raids and Detention Act (S. 3594), to protect the rights of U.S. citizens and legal residents who get caught up in immigration raids.

Olivares was not picked up in such a raid, but the egregious violation of his rights as an American citizen dramatically demonstrates the same problem: that federal Immigration and Customs Enforcement (ICE) officials routinely disregard the Constitution when enforcing federal immigration law.

'If ever there was evidence of the fundamental flaws in our immigration system, it is the fact that a U.S. citizen was deported twice and denied entry into the United States on numerous occasions without any due process of law,' said Jennie Pasquarella, staff attorney for the ACLU/SC. 'ICE officials repeatedly ignored his certified birth certificate, which they could easily have corroborated, and instead simply refused to believe him. It is inconceivable that this would have happened were he not Latino.'

Olivares was born in the Los Angeles area, and had never lived outside the United States until he was forced to live in Mexico after ICE deported him in 2007 and refused to allow him to re-enter. But his ordeal began in 2000, when border agents questioned the veracity of his birth certificate and whether it belonged to him when he was returning into the United States at the Tijuana border crossing. The agents refused to let him enter his own country. A week later, however, Olivares' mother met him at the border crossing with a certified copy of his birth certificate, and Olivares and his mother re-entered the United States without incident.

In 2007, while Olivares was serving time in state prison, agents from the Department of Homeland Security approached him and told him he was a Mexican citizen and would be deported. Olivares insisted that he was a U.S. citizen, but eventually - not fully understanding his rights as an American citizen - he was coerced into signing papers that were never explained to him and was deported to Mexico.

He then attempted to cross back into the United States, but border guards refused to let him enter. He felt he had no choice other than to live for a time with his mother's family in Jalisco. But in June 2008, upon learning that his father in Los Angeles was gravely ill, Olivares again tried to cross the border legally, presenting a certified copy of his birth certificate. After being rebuffed, he crossed illegally, but was picked up by the U.S. Border Patrol. On September 2, 2008, he was deported for a second time to Mexico, on the day his father died.

In September, Olivares - accompanied by his mother -- tried yet again to re-enter the United States legally from Tijuana. Once again, immigration officials rejected his birth certificate. However, this time he refused to sign his name to the papers foisted upon him and demanded to see a judge. As a result, ICE put Olivares in removal proceedings and detained him at the Otay Mesa Immigration Detention facility in San Diego. The family then contacted the Coalition for Human Immigrants' Rights of Los Angeles, which in turn contacted the ACLU/SC. On October 9, ACLU/SC staff attorney Jennie Pasquarella advised ICE that it had no authority to detain Olivares because he was a U.S. citizen, and presented his birth certificate and other documentation demonstrating his citizenship. He was released later that day.

'There's something fundamentally wrong with the system if border guards can effectively deprive you of your citizenship by simply disregarding a valid birth certificate,' said Pasquarella. 'ICE officials obviously used race and ethnicity as a basis for enforcing our nation's immigration laws, rather than taking a few minutes to verify Mr. Olivares' legal status.'

A hearing in federal immigration court in Olivares' case has been set for Jan. 6, 2009, at which Olivares will seek to terminate the removal proceedings against him.