State Supreme Court to hear challenges to Prop. 8

[FreeState]

Source: SF Gate

(11-19) 13:57 PST SAN FRANCISCO -- The state Supreme Court plunged back into the same-sex marriage wars today, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.

At the urging of both sponsors and opponents of Proposition 8, the justices granted review of lawsuits challenging the Nov. 4 initiative. Approved by 52 percent of the voters, Prop. 8 restored the definition of marriage - a union of a man and a woman - that the court had overturned May 15.

In today's order, the justices let Prop. 8 remain in effect, denying a stay that would have allowed county clerks to resume issuing marriage licenses to same-sex couples until the case was decided. No hearing has been scheduled.

The court also said it would consider the validity of 18,000 same-sex marriages performed between mid-June, when its ruling took effect, and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/19/BAJC147QAJ.DTL

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YES!

[FreeState]

1. LA Times article

http://latimesblogs.latimes.com/lanow/2008/11/the-californi-1.html

The California Supreme Court has agreed to hear a challenge to Proposition 8, the ballot measure approved earlier this month that banned same-sex marriage. But it also denied a request to put the ban on hold until it considers the challenge. From the court:

The California Supreme Court today denied requests to stay the enforcement or implementation of Proposition 8, and at the same time agreed to decide several issues arising out of the passage of Proposition 8. The court’s order, issued in the first three cases that had been filed directly in the state’s highest court challenging the validity of Proposition 8, directed the parties to brief and argue three issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The Times Maura Dolan will have a full story soon.

[davidinalameda]

2. it's removing rights

so it's a revision, no?

[This One]

3. One would think

[Maat]

4. Crap!

I was praying for a stay, so that those who wished to exercise their fundamental right, to marry, would be able to do so, pending a hearing on the merits.

[Zhade]

16. My guess, and it's only a guess, is that they didn't want such marriages to weight the decisions.

If tons of couples married, it might make it harder for them to remain objective.

At least, that's how I imagine they might see things.

[Maat]

20. You may be right.

I think that it's probably that they want everyone to at least think that they are completely objective. I'm just hoping that they'll do the right thing.

[Zhade]

21. Believe me, as a queer guy whose best friends are waiting to get married, me too!

: )

[David__77]

5. Doesn't look good. Better prepare for a future referendum.

Kennard, one of the pro-marriage rights majority, didn't favor taking up the challenge to Proposition 8. That leaves us with three, unless she's won over somehow. Unless I'm not understanding her position.

[FreeState]

6. Thats assuming that they only take cases they want to rule in favor of

and thats a big assumption IMO.

However I agree we do need to get a ballot measure before the people in 2010 and after equality is restored amend the constitution to outlaw any amendment that would create legal segregation or take away rights from groups of law abiding citizens.

[David__77]

8. The Kennard thing is a key point.

She was in the majority on the pro-equality decision in last spring. Now, she didn't want to rule on Proposition 8. Isn't that tantamount to saying "let Proposition 8 take effect" and that there is little chance, in her mind, of the opponents prevailing? On the other hand, I doubt the three justices who opposed recognizing marriage rights last spring will somehow come around to throwing out an "amendment" now.

[FreeState]

9. Wasnt there a justice that was against the overturning of Prop 22 that actually

stated in his disagreement that he thought it should have been overturned on different grounds than what the petitioners were asking?

[David__77]

11. No.

Corrigan stated that she "personally" supported gay marriage, but that the court cannot "impose" it. She's the only one who may be won over on the Proposition 8 issue. So, basically, we HAVE TO keep three of the four (Moreno, George, and Werdegar) and need to have either Kennard or Corrigan in addition. Baxter and Chin will definitely vote for upholding Proposition 8.

[FreeState]

14. Thanks I just reread the dissenting opinions and

its interesting to see there is some room to wiggle them - however this is not so much a case of should marriage be legal any more - its a case of is it okay for the people of CA to amend the constitution by simple majority in order to take rights away from a suspect class, as opposed to revising it via the legislature/constitutional convention.

It will be interesting to see how they do vote and how much the original ruling on Prop 22 correlates to how they vote. Im hoping we may be surprised.

[SidneyCarton]

29. In frankness and honesty I think such a referendum would be a good idea,

shortly followed by another referendum that outlawed referendums.

[GodlessBiker]

7. She may have thought the case should percolate through the lower courts? Maybe?

[David__77]

10. That would seem odd. I'm hopeful.

And, indeed, there may be a justice won over from the other side, who opposed the earlier decision, but sees that as separation of powers issue with the amendment vs. revision question. We'll see. A stay would have been most welcome.

[GodlessBiker]

12. Some judges get hung up on procedure. They don't want to open the floodgates for a direct path to..

the court. Yes, the revision vs. amendment issue will have effects past this case and those who opposed the original decision might rule on our side on that narrow issue.

[JimDandy]

23. This is a constitutional issue.

I thought cases that needed a decision on a constitutional issue could (should?) be heard at the State Supreme Court level right off.

[GodlessBiker]

24. No. A constitutional issue often begins in the lowest level trial courts. And then...

the issue works its way up on appeal.

[scytherius]

17. Speaking as a former lawyer and jurist

It doesn't look like anything. =) They just want to get it "right" regardless of how they come down. Some probably aren't 100% sure and should they decide to uphold Prop 8, they don't want to decide it later. Even one judge requesting this would ask for argument on that. Hell, I know that I would vote to overturn it and I would ask for that issue to be argued.

So, after 35 years of practice and on the bench, don't read anything at all into this because all it means is they will deiced something someday . . . and that is really ALL it means. Also, I too would have voted to not reinstate the practice. This is really very new judicial ground and even though, again, I know I would vote for it. I would still do the judicial version of "everyone just sit still and wait."

There are no reading of tea leaves on something like this. This is neither good nor bad.

[greeneyedboy]

25. other interpretations of Kennard's statement

http://calitics.com/showDiary.do?diaryId=7579

...Another interesting side note - Justice Kennard did not join the Order. She stated that she would deny the Petition, but she would allow another Petition to be filed that raised only the third question - What effect Proposition 8 has on the marriages performed before the adoption of Proposition 8. What does this mean? Well, it could mean that Justice Kennard does not believe that Proposition 8 is unconstitutional. On the other hand, it could mean that she simply thinks the case should originate in the Superior Court before making its way to the Supreme Court.

Justice Kennard was one of the four Justices who voted in favor of marriage equality. In fact, she was one of the minority of Justices who thought that the marriages that were performed in 2004 should not have been invalidated pending the Court's decision in In re: Marriage Cases. Justice Kennard wrote her own concurring opinion in the Marriage Cases in which she stated:

Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law or resolution by the judicial branch of state government.

Given her stand on this issue, it is my guess that Justice Kennard believes that Proposition 8 is not constitutional. I must admit, though, that her refusal to join the Court's Order today perplexes me.

[greeneyedboy]

26. dupe post - ignore :-)

[HockeyMom]

13. It is going to have to go to the Supremes

Simply because there is a mish mash of different state statutes: some with marriage, some with civil unions/domestic partnerships, some states recognizing the aforementioned, other states banning it and all recognition of other states.

It is coming to a head, no pun intended, very rapidly.

[GodlessBiker]

15. Eventually it will, but it doesn't have to on account of this case.

[scytherius]

19. Assuming a Federal issue is ruled upon. If not, they have no jurisdiction nt

nt

[HockeyMom]

34. Loving v. Virginia

Any lawyers out there? From what I understand Virginia had banned interracial marriage, so the Lovings (residents of Virginia) went to Connecticut to be married. They then returned to their residence in Va. where their marriage was banned. Was it an actual crime in Va.? Were they arrested?

At any rate the reason it made it to SCOTUS was because it was an interstate issue. Va. law versus Ct. law. Anything involving two states makes it a federal jurisdiction.

It would seem to me this is what we have now. A few states recognizing gay marriage, civil unions, domestic partnerships and other states, not only not recognizing them, but passing props and amendments banning them. I would think this would make it federal jurisdiction, as in Roe, Lawrence, etc.

[customerserviceguy]

28. Not too rapidly, I hope

At this point in time, we have a small handful of states that recognize any kind of committed relationship between same-sex partners, and we have thirty states that specifically ban equal marriage in their constitutions. We have a right wing majority, and the only Justices that are likely to be replaced in the next few years are ones who would be on our side anyway.

When interracial marriage bans were struck down by the Supreme Court in 1967, there were only a relative few states that had such laws on the books, and it was not universally enforced throughout even those few. The laws being overturned were from the post Civil War era, and were rightly seen as anachronisms that time had passed by. Most all of the amendments denying marriage equality have been adopted within the last decade, and by popular vote.

We really don't need a precedent-setting decision on this anytime soon, I'm afraid.

[Divine Discontent]

18. without knowing the legal mumbo jumbo, when I saw revision, I thought

"yes, that's what this is, it's revising legal rights", so they better agree for civil rights sake! God made me gay, they can kiss my queer ass if they think we're going to sit back and keep taking the level of abuse in every day events where people mock being gay, literally DOZENS of times a day - I've counted. If I do a normal day, get up watch news, and a show or two, then at work, then going to stores, gas station, then home talking with people in neighborhood or on phone, then watch TV, news, and late shows - there are a dozen references to "gay" every day, and most of them are negative or 'haha' references. It's as if the last people you can pick on and get away with it in this country are the obese and the GLBT. We are going to fight for our rights, so the future kids coming up don't think of gay people as unworthy of even basic rights, so they don't have to be respected!!!!!!!!!!!!

Many different Yes We Did items in the Obama/Biden section www.cafepress.com/warisprofitable

[Zhade]

22. Well, and atheists. Except we're mostly just hated, not mocked.

We will win, my friend. We will win.

[Divine Discontent]

33. ha...

:hug:

[robinlynne]

27. Isn't anyone going to step up and say count the votes. prop 8 has not passed yet!

How can a lawsuit exist over something that has not happened. This is insane. Prop 8 will pass or not pass after the votes are counted. and only then. This is like 2000 and 2004. Someone (Fox NEws, Bush's cousin) says Bush is president, so he is? For how long are the American people going to let politicians continue to play this game?

[Zhade]

30. Excellent point!

NT!

[slackmaster]

31. If the court thought there was any real chance it was not going to pass

Wouldn't they have thrown the suits out due to lack of standing, or something like that?

[robinlynne]

32. It is not the court's place or anyone's place to decide what is going to pass without counting

the votes. that is a new thing which started in this country in 2000 and hasn't stopped for a minute since!