The Supreme Court of California announced yesterday that it would hear three-hours of arguments on March 5th before it makes its decision regarding Proposition 8, which marriage equality activists claim unfairly and illegally strips gays and lesbians of the right to marry. It will be the trial of the century, as gays, lesbians and allies argue not just for the right to marry, but for their existing legal marriages.
“Kate Kendell, executive director of the National Center for Lesbian Rights said it was unusual for the court to hold a hearing so soon after obtaining written arguments. The court received final briefs late last month.
Tuesday’s announcement gave her “that clench in your stomach where it actually now makes it real,” Kendell said.
The court has been inundated with friend-of-the-court arguments in the case.
Forty-three groups representing civil rights activists, legal scholars, labor unions, bar associations, state legislators and religious organizations have filed written arguments asking that Proposition 8 be overturned.
Twenty organizations, including religious and legal groups, have argued that the measure should be upheld.
The record number of such briefs filed in a state high court case was 68, and those came in the case that led to the court’s historic May 15 ruling in favor of same-sex marriage. Proposition 8 restored the marriage ban.
Gay rights lawyers and the city of San Francisco contend that the ballot measure was an illegal revision of the state Constitution. It is a novel argument that required the attorneys to try to distinguish Proposition 8 from other cases in which the court rejected revision challenges.
California Atty. Gen. Jerry Brown also asked the court to overturn the proposition, but on other grounds. He argued that “inalienable rights” cannot be eliminated without compelling reasons, an argument that, if accepted by the court, would make major new law in California.
UC Berkeley emeritus law professor Stephen Barnett said Tuesday that both challenges were “long shots.”
“Brown’s is stronger because it has never been tried before, so it’s got that going for it, whereas there is a lot of law about what’s a constitutional revision,” he said. Still, Barnett said he doubted that the moderate, Republican-dominated court would adopt Brown’s theory because he said it could have far-reaching consequences.”