Updated November 5, 2008 – 2:45 pm ET

Updated November 5, 2008 – 2:30 pm ET

(San Francisco, California) At least three lawsuits are are in the works to challenge Proposition 8, a proposed amendment to the California constitution that would ban same-sex marriage.

One of the suits is planned by City of San Francisco attorney Dennis Herrera’s office. A second is by the three LGBT groups that won the historic California Supreme Court ruling that allowed same-sex marriage in the state.  The third is by one of the couples who were married after the court ruling went into effect in May.

All three suits would begin if Prop 8 passes.

With 95 percent of the vote in across California the “Yes” votes have a slim lead: 52 – 48 percent. Though some outlets called the ballot measure in favor of the anti-gay ban a few hours ago, as many as 3 million ballots – late absentee and provisional ballots – are left to be counted.

It is those ballots that opponents of the amendment are counting on for the measure’s defeat. But most political watchers in the state say it is unlikely the additional ballots will change the result.

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court on Wednesday, a preliminary move to a suit.

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. 

The petition also says that Proposition 8 improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. The groups in the petition say that under 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, the groups said in a statement. 

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, the petition said.

“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, Senior Counsel 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.”

Robin Tyler and Diane Olson, the first lesbian couple to be legally married in Los Angeles County, also plan a lawsuit against Proposition 8. 

Their attorney, Gloria Allred, said the suit would argue that the measure is unconstitutional.

Proposition 8 is the first time such a vote has taken place in state where gay unions are legal.

A study by the Williams Institute at UCLA School of Law indicated that by Election Day 2008, approximately18,000 same-sex couples had married in California.

Exit polls reported by CNN show that while a slim majority of white voters said they rejected the amendment, an equally slim majority of African American and Hispanic voters said they had voted for the amendment.

The battle for and against the measure, known as Proposition 8, cost more than $70 million, making it one of the most expensive ballot campaigns in history. Much of the money on both sides came from outside California.

Similar bans on same-sex marriage were approved by voters Tuesday in Florida and Arizona; while in Arkansas the electorate endorsed a measure to prevent same-sex couples from adopting.

Florida

In Florida, the ballot measure amends the state constitution to limit marriage to opposite sex couples and ban civil unions.

The amendment also could be used to deny partner benefits to unmarried couples who live together.

The amendment says, “Inasmuch as marriage is the legal union of only one man and one woman, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Constitutional amendments in Florida require a 60 percent majority. The marriage amendment won with 62 percent of the vote. Thirty-eight percent were opposed.

Florida already had a law restricting marriage to opposite-sex couples, but supporters of the amendment say the law could be overturned in court.

Arizona

In Arizona, where a simple majority is needed to amend the state constitution, 56 percent of voters approved limiting marriage to opposite-sex couples.

It was the second time Arizona voters were asked to change the state’s constitution to define marriage as a union between one man and one woman.

Voters rejected a similar state constitutional amendment in 2006. That measure would have also stopped the state from recognizing civil unions of same-sex couples.

Arizona law already prohibits same-sex marriages. Supporters say the amendment will “protect the sanctity of families” by preventing judges from overturning the 1996 state law.

Arkansas

Arkansas, which already has a constitutional amendment banning same-sex marriage, now will limit adoptions and foster care of children to people who are legally married.

The ballot measure passed Tuesday by a wide margin – 57-43 percent.

The measure grew out of a state Supreme Court ruling last year that overturned a Child Welfare Agency Review Board policy that banned gay people from serving as foster parents.

In its unanimous ruling, the court said that “the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board’s views of morality and its bias against homosexuals.”

The Arkansas Family Council – the same group that spearheaded Arkansas’ constitutional ban on same-sex marriage – collected enough signatures to place the adoption referendum before voters.

Connecticut

In Connecticut, a potential anti-gay measure was also on the ballot. Connecticut voters turned down a call for state constitutional convention.

Under the state constitution, the question automatically goes on the ballot only every 20 years.

Earlier this year, the state Supreme Court ruled that Connecticut’s civil unions law failed to provide equality. The first same-sex marriages in the state are slated to begin Nov. 12.

By chance, the automatic ballot question came up this year, raising fears that if voters agreed to a constitutional convention it would have been used to ban gay marriage.

The Family Institute of Connecticut had gone on record calling for a constitutional amendment banning same-sex marriage.