Live from Sacramento, California

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Protests over the apparent victory of Proposition 8, the voter inactive in California that effectively bans gay marriage have been held outside the state Capitol in Sacramento.

With 99.7% of votes counted, 5,376,424 (52.5%) voted in favour of a constitutional definition of marriage being between a man and woman. 4,870,010 (47.5%) voted against. Between three and four million postal and absentee ballots have reportedly not been counted as yet.

Around 650 people, mostly recruited via text messages and social networks held banners declaring “Vote No to Prop 8″. They stood opposite a much smaller group of religious protesters from the apparently victorious Yes to Prop 8 campaign.

Xiomara Side brought her three children aged 12, nine and six with her to the vigil. She told told PinkNews.co.uk: “We are denying the basic human rights for my gay brothers and sisters.

“If I can wake up next to the person I love, why can’t gay people? I need my children to know that human rights are for everybody.”

She added: “Today it starts with my gay brothers and sisters, next it might be us Hispanics, then African Americans. My children must learn from a young age.”

Her nine-year-old son Alexanderou told PinkNews.co.uk: “It will help people to know they should have voted no on Prop 8. It is unfair to gay people.”

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Attorney General Jerry Brown said today that although gay marriages held before election day were valid, any marriages performed afterwards are invalid. This is despite the fact that between 3 and 4 million postal and absentee votes have not been counted.

The Governor of California, Arnold Schwarzenegger was publicly associated with the anti-Proposition 8 campaign and is now in favour of same sex marriage in his state.

Today the American Civil Liberties Union, Lambda Legal and the National Centre for Lesbian Rights filed a writ petition before the California Supreme Court today 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 organising 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 lawsuit was filed today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday’s election but would like to be able to marry now.

“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 may pass, 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.”

The groups said they are confident that the state will continue to honour the marriages of the 18,000 lesbian and gay couples who have already married in California.

Benjamin Cohen is the Founder of PinkNews.co.uk and a Correspondent for Channel 4 News