BREAKING: California Supreme Court Will Rule on Prop 8 This Tuesday

Word just arrived the SCOC will rule on Tuesday, and with that, demonstrators and organizers move in to effect for a blowout on May 26 — though it’s only then that we’ll know whether we’re protesting or celebrating. Extensive details at Day Of Decision. The announcement is expected to be posted on the Court’s website at 10am local time.

Now keep in mind: The Court will not be ruling on the legality of same-sex marriage. They already decided last year that gays have that right. What Tuesday’s decision will make clear, however, is whether California’s Constitution permits a voter-driven ballot initiative to overturn their ruling and amend the Constitution. If they decide the Constitution does not permit measures like Prop 8, the amendment becomes invalid, and their previous ruling for same-sex marriage will stand. If they decide Prop 8 is valid, they will also declare same-sex marriage supporters have the right put a reversal of Prop 8 to voters.

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  • Charles

    Hoping for the best but expecting the worst. Whatever the outcome, I’ll be at the Pasadena, CA location.

  • Forrest

    No doubt that we have had great momentum as of late, but I am not feeling good about this one…..

  • D-Sun

    My hopes remain low.

    As long as your expectations are in the gutter, it’s much harder to be disappointed.

  • Tony

    I too am expecting the worst. The religtards threatened the SC Justices with being voted out of their positions. It happened to Grodin and Rose Bird and the memory is still fresh. These individuals initially stood up for our rights but let’s face it, a job is a job in a bad economy, and the California SC is a very nice job.

    It does not look good. Who would have thought that Iowa would end up being more progressive than California.

  • mark

    I am pessimistic, I hope if the ruling does go against LGBTs, we demonstrate angry and determined, but not with wanton destruction.
    SHUTTING DOWN CA business as usual should be the goal, letting them all know, there is a PRICE TO BE PAID, for excluding OUR Rights from the equal protection clause.
    HAD any other minority’s families been attacked like we were, there would be rubble and ashes as far as the eye could see.
    I’m glad we have 4 days to get our demonstrations organized, I hope our organizations make sure we include our ALLIES in the planning.
    LDS Temple in Salt Lake City and Saddleback Church should also have MASSIVE demonstrations, so they NEVER attack us again.

  • Bruno

    Prepare those picket signs folks.

    I’m just hopeful I’m still married by 10:01 on Tuesday, if I even have been since November.

  • rigs

    it will be upheld, don’t get ur hopes up. thats my opinion anyway

  • alex

    @Bruno: I don’t think that they are going to take away your or my same sex marriage. It’s just unlikely that there will be any more allowed until we over turn this via the ballot box.

  • mark


    sorry it just crossed my mind

  • dvlaries

    Be of strong, brave and cheerful heart this weekend, gentlemen. Gay marriage is coming and that’s that. Maybe not as widespread as we dream for our lifetimes, but it is. And for those who would vainly hold it off, it’s a matter of evolve or die.

  • Jeffrey

    The court is probably going to rule to uphold PROP 8. For the first time, equal rights will have been granted to us and then taken away. PLEASE get out and protest on Tuesday night. It is not just about marriage in California. This is about fair and equal treatment under the law for all U.S. citizens.
    The protests on Tuesday should be about demanding full equality from the federal government. Nothing less. And we need to show up in big numbers!!!

  • schlukitz


    Sorry. Proposition 8 is one big hemorrhoid (read pain in the ass) that Preparation H is not going to relieve. ;-P

    Only the SCOC can give us the required soothing balm and the relief that we seek.

  • atdleft

    @rigs & @Tony: I dunno. Be prepared to be surprised. I won’t make any predictions, but I’m not ready to give up hope just yet.

  • DonG90806

    @Tony: Only Chief Justice George and Associate Justice Ming are up for election in 2010. George wrote the original marriage decision and Ming voted against it. So, at best, the right wing will go after George, but he is widely respected and liked by conservative Republicans.

  • The Gay Numbers

    I think it could go either way. I am neither really hopeful nor pessmistic. I do have a sense of slight anxiety because I do not know how this will fall out for my friends out there.

  • Bruno


    At this point, it’s the waiting 6 months to even know that chaps my ass more than anything. If the Supremes spew the same crap they were at the hearing in their ruling, I’ll have to really wonder if they didn’t consider the feelings at all of the 18k couples being in doubt about their marriages.

  • atdleft

    @DonG90806: Yeah, George’s legacy is very much staked on this. He’s been very supportive of us before, and we’ll on Tuesday if he shows some courage again.

    @The Gay Numbers: Yeah, I’ve just learned not to set expectations. Who knows what will happen? Get ready for just about anything on Tuesday.

  • pz

    I know that this is a liberal-leaning site (and for good reason), but this is one of the problems with liberal courts (and politicized courts in general). This court has been quoted as saying, as a reason to uphold this law, that “the court could not willy-nilly disregard the will of the people.”

    The neither the will of the people nor the legislature is allowed to create laws, like this one, that so fly in the face of the constitution, which is supposed to guarantee equal liberty for all.

    I almost think that a Geogia Supreme Court would toss Prop 8 out under the idea that they couldn’t justify the proposition under the constitution.

  • daftpunkydavid

    as unfortunate as it is, prop h8 will prolly be upheld. anyone who watched the oral arguments wouldn’t even have a doubt. thinking, hoping, dreaming otherwise, is setting yourself up for sadness and anger on tuesday. but then again, that is not such a bad idea: we need more involvement to repeal that freaking prop h8.

    there is no question in my mind that those who got married before nov 4 will have their licenses still recognized.

    i hope i’m right on the latter prediction; i’d die to be wrong about the 1st one.

  • Shae

    God if this thing stays im going to be sooooo pissed off. Being only 19 i would riot the shit out of Cali and thats what ive been hearing is going to happen. I support breaking shit as long as noone gets hurt but we need to show them that we arnt just sissy fags like they think we are but we are humans just like them and that we can beat some ass if we need to! GAY MOTHERFUCKING POWER!!!!!

  • Sapphocrat

    @Bruno: My gut says we’ll still be married, while my head says, “Expect the worst.”

    If it goes as expected (they uphold PH8, yet our marriages stand), the next immediate question for us marrieds will be: How are we going to use our new, strange, privileged, “special” status to win back equality for everyone else?

    My first thought is: We somehow need to network the 18,000 couples/36,000 people who will (we hope) remain married, and present a united front within the larger movement.

    Every time I try to organize anything, it fails — I think I’m not the right sort (I’m a middle-aged lesbian with zero cool cred) to attract enough attention — so I’ll throw the idea out here, hope someone better at this of thing picks it up and runs with it, and just be pleased to invest my time and energy.

  • mark

    Here would be an easy visible symbol all demonstrators could reproduce, paint H8 on the back of your right fist, can you imagine the impact of a MILLION fists raised in unison
    other’s mentioned putting a red slash through it, I would wait and see how the ruling comes out.

  • pz

    As opposed to protesting, which is tiresome and anyone can do, why don’t we show the good side by holding “drag” races all across America. We could turn it into a festival sort of atmosphere.

    Okay, I know…I’ve suggested this to my gay friends and they looked at me like I was nuts. But it would be particularly great here because our main road through downtown is called Gay Street.

    I get giddy thinking of all the tiaras, pumps and boas charging down the street in heated competition, but maybe that’s just me.

  • The Gay Numbers


    How about you as a so-called conservative do what you want in a free society and let others do the same. One of the reasons no one follows conservatism is because at base it’s just a lie and most of you are delusional.

  • strumpetwindsock

    Or you could save that great idea to show the good side of something with a little more personal relevance, like your mom or dad’s funeral.

  • Schteve

    @DonG90806: Yeah but people could always start a recall petition against any of the others. Granted, that would be extremely difficult to pull off given the number of signatures necessary in about a five-month period. But still a possibility.


    No matter the majority decision, I look forward to reading the opinion that argues upholding the amendment. We all know that if the proposition targeted some other fundamental right of a different suspect class that there would be no hesitation whatsoever in declaring it invalid. So it should be interesting to see how those justices argue their way out of that one. And I would fully expect them to specifically address that issue in the opinion as well, which should make for a good laugh or two.

  • Dr. Pedantic

    There’s really not a lot of suspense here. It would be a bigger shock than Kris winning American Idol if the Court were to toss Prop 8! My prediction: they’ll uphold it on a 5-2 vote, but at least one or two Justices will express sympathy for us and agree that it’s ridiculous that the Constitution can be amended so easily. The Court will also hold, 7-0, that Prop 8 isn’t retroactive, which will put 36,000 Californians in a very weird, privileged state of marriage that others can’t take advantage of.

    I cringe at allegations that the Court is going to be cowardly, or afraid of being recalled, simply because it finds against us. These are all very tricky legal issues and there’s not a lot of precedent on our side. I think it was Justice George at oral argument who asked, “Isn’t your argument really that it’s just too easy to amend the Constitution?” That is the fundamental problem here, and one that can’t be fixed by the Court. So yes, upholding Prop 8 means any minority group can have state rights stripped by majority rule (though for most of those groups, that would violate the U.S. Constitution). But the problem is that is just how our nightmare of a Constitutional system works in California. I’d hate to see protests against the Court and personal attacks on Justices just because we disagree with them. It was wrong for the haters to do it last year, and it would be wrong for us to do it now.

  • mark


    GREAT idea, sweetie, you start it, and we’ll tune in to watch…probably.

  • Tony

    God I hope I am wrong, but I expect to be taking to the streets Tuesday night.

  • Gianpiero


    I’m with you! I think that collectively we can be a strong part of the campaign to re-secure equality for everyone. So many images and amazing stories about people who married were deliberately excluded from the discourse last summer by those who thought it a “strategic” move. We can’t let that happen again.

    Sadly, I’ve seen some suggestions that if our marriages are upheld, we would be a sort of embarrassing, inconvenient truth in the fight for full marriage equality. On the contrary, I think it presents the opportunity for us to be an essential part of that fight.

  • atdleft

    @Gianpiero: Yes, we need the “2008 marriages” to stay vocal just like we’ve needed the “2004 marriages” to speak up.

    @Tony: Either way, we’ll hit the streets. I’m really hoping for a celebration. We’ll see. As Kate Kendell has said, we have plenty of reason to hope… But we’ll still have plenty to do regardless of the ruling.

  • kademonster

    i think this is going to be a lost cause. maybe further down the road we’ll get california, but i just think it would be more than wishful thinking for us to assume these judges will overturn a vote of the people, no matter how wrong it is.

  • Jeffrey

    @Sapphocrat and Gianpiero: I totally agree. My husband and I think that we should start by having as many of us married couples as possible march together as one unit at the rally on Tuesday and also in the gay pride parades next month. Do you agree? How do we make it happen?

  • Bruno


    Um, those “inside sources” don’t usually pan out to mean much. That website is likely just guessing at the most obvious scenario, and not providing much info of note otherwise.

  • Bruno


    There’s a Facebook group called “Coalition of the Married for Marriage Equality” where I do think you have to request to join, but I assume this could be a good place to go from.

  • Bri

    Funny how both sides expect the worse. I just went over to see how the FReepers were reacting and they are all doom and gloom too. Except they think Prop 8 will be overturned.

  • Kevin (not that one)

    Either way, we’ll have marriage equality very soon in California.

    You can’t close the floodgates now, try as the Religious Right may.

  • atdleft

    @kademonster: Sweet Melissa explains it pretty well…


    While Prop H8 isn’t quite exactly like Prop 22 (amendment/statute issue), many of the same issues stand, especially the conflict between the “will of the people” and the fundamental rights guaranteed to suspect class minorities. They said themselves last year that the equal protection clause is too sacred to throw out simply because of a popular vote, so they’ll look quite craven and disingenuous if they toss their own words out the window next Tuesday. This is what gives me hope: The judges care quite a bit about their own legacy, so do they want to be known as “the court that caved on civil rights out of fear” or “the trailblazing court that paved the way for a new wave of progress for LGBT civil rights”? I know anything will be possible on Tuesday, but I have hope that their beliefs on the inherent value of our civil rights and Constitutional protections haven’t changed.

  • atdleft

    Btw, here’s more reason to hope:


    Again, there’s no way to really know what will happen on Tuesday. However, I think the media coverage hasn’t been accurate in explaining what the issues in this lawsuit really are.

  • The Gay Numbers

    @atdleft: Thanks for the post. I will check it out.

  • timncguy

    the courts in CA already were asked whether this Prop could be on the ballot BEFORE they let it stay on the ballot.

    Did they make a decision THEN that it was good or did they just not make a decision then and punt it to the future?

  • The Gay Numbers

    @timncguy: That’s one of the reasons I question the certainty that some have about the outcome in favor of the Pro 8 side. They were given a chance to avoid this entire issue. If they belived that this was merely a procedural question of amendment to the constitution rather than a change of laws, they could have punted by saying as much in their ruling. There are too many tea leaves that can be read either way in a case that’s one of first impression. If they felt at the time as you describe, then it would be judicial incompetence to have not given a clear ruling on this in In Re Marriage since they were asked to stay In Re Marriage based on this very scenario. No one is now discussing the circumstances of how we got here. Part of it was that they decided to rule rather than staying their decision pending Prop 8 to correct what they could have found to be a mere procedural error.

  • The Gay Numbers

    by the way-t his is one of the reason i do not think this can be decided on procedure. They set up their case law that they can not ignore. Saying it is changed constitution does not solve the problem of what can cause the change- the question they are being asked to answer. It becomes tautological to say that an act that maybe illegal (if one so decides) can change a constitution. it would be like saying that the US constitution can be changed in a manner that is not in accord with the law. Often, one of the ways I can tell whether someone “gets” this case is whether they get that point or not. The question fundamentally is how does one go about changing fundamental rights. If they felt that this was not at issue- again- they could have avoided it last year when they were asked to stay the decision pending prop 8.

  • The Gay Numbers

    Finally- one other thing: My one concern is that they may punt on this by saying that the sucesses in the NE through the legislative process means that courts need not decide on equality issues. this would again turn equal protection (a section of their constitution) on its head, but I am by no means certain what the outcome here will be so I would not be surprised to see something like this come may 26th

  • Sceth

    Since so many of us are bitterly expecting Prop 8 to be upheld, I find myself half-hoping that they say something like “Equal Protection is a sham; Damn it all and let Propositions screw everyone.” Ehh… At least it would spark utter outrage.

  • Dennis

    You know, as a former Californian, if the news is bad on Tuesday..I say SCORTCHED EARTH POLICY! (No attacking people, or deaths desired tho) Bust some shit up!

    I am just as pissed at our second class citizenship as anyone else on Queerty, I just don’t lay all the blame for our current situation at the feet of Barack Obama. it’s irrational…we’ve been punching bags in this country forever, well before Jan 20, ’09!

    But the stereotype of the “well behaved gay” needs some shaking up…pissed off queers ain’t gonna find friends w/ the Fox news crowd, and will upset some timid allies…but FUCK IT! No more “Mr/Ms. Nice Queer”, more in your face activism a la Act Up Etc. “Friends” and allies who don’t understand our anger are fairly useless anyway…and are content to keep us as their lapdogs, best “gay friends” and court jesters at their parties…ENOUGH!

    If the news on Tuesday is good, we retract the claws…but keep ’em sharp for the next battle.

  • Schteve

    @timncguy: They specifically denied to rule on the matter then in the hopes that the citizens would not pass Proposition 8. Had it failed, they wouldn’t have to take up the issue at all, which is best for them since no matter how they decide they would draw criticism from a good portion of the electorate. Which again seems to imply that their own political survival will be playing a part in their decision.

  • The Gay Numbers

    @Schteve: .. What you describe makes no political sense. They would not have decreased the likelihood of political issues coming up from what you describe. In fact, as we are seeing it increases the chance of a poltiical issue.

    The following statement would have avoided the political question for them in In Re Marriage: ‘We decide that the law is unconstitutional, but the remedy is to have a different process- the amendment process to the constitution rather than code.” Who would they be acting politically in favor of with In Re Marriage? The voters? That’s an odd position. Gays- yes, but that hardly seems like that would have been their political calculus either. In Re Marriage was not a narrowly tailored decision designed to avoid politics.

    They choose to overturn the law by finding a new suspect class and a fundamental right to marriage. I have said this before,a nd I will say it again- if they rule in favor of Prop 8 on Tues, it will be politics and piss poor jurisprudence on their part last year because the ruling would have been overly broad and completely avoidable by narrowly having written In Re Marriage to only require a different procedural choice of amendment to the constitution rather than through the code .

    I really do not legally get some of the conclusions being made here unless CA Con law is so different about how justices are to narrowly tailor laws that it means they can just make sweeping legal rulings, and the next year completely flip without regard to how needlessly sweeping their language was the privious years. As a general rule, judges are suppose to narrowly tailor their decisions.

  • The Gay Numbers

    by overly broad- I mean that this now threatens not just marriage equality but any action involving a minority subject to equal protection analysis whereas a procedural argument on their part would only affect marriage equality. All such rulings would be subject, if they rule in favor of 8, to bare majority rule. Such an outcome was completely forseeable, and the justices were warned about it last year when In Re Marriage was argued.

  • Freddie

    Hope it’s Ok to post this link to a youtube video here about Miss California, Prop 8 and gay marriage. It’s my way of trying to add to the discourse on the subject, and making it kept me from just stewing in my own agitation. It’s only about 90 seconds, and totally family-friendly, nothing you couldn’t see on TV. Please pass the link on to others if you like it.

    I call it A Prop8 Quickie: a parody of the song “I’m Just Wild About Harry” (from the Broadway musical SHUFFLE ALONG), called “I’m Just Wild About Carrie” in honor of Miss California Carrie Prejean


    Thanks for letting me share my way of dealing with this if you have 90 seconds to watch it.

  • schlukitz


    Love it. Thanks for sharing it with us, Freddie.

  • depfox

    The leffews will be there. Im taking the day off work to stand in front of the court house ;o(

  • mb00

    GOOD LUCK Californians!!! I’m trying to stay optimistic about it. I really hope they vote to invalidate prop 8.

  • Paul

    @Sapphocrat: Great idea! We should take this on if we have to post tuesday morning.

  • Freddie

    Schlukitz – Thanks so much for watching!

    The battle is obviously all over the country, but it’s felt like California has become symbolic of the overall battle, and it just adds to the symbolism that this lady happened to somehow be “representing” California.

  • MackMike

    As a gay guy who got gay married on July 3rd, I’ve just appreciated reading all the opinions posted on this particular thread. No matter the decision on Tuesday, I’ve already prepared myself to one very important fact: no one, absolutely no one, can take away the love and committment that my husband and I share with one another. I’m not negating the fact that we must fight for our rights, but I would like to remind everyone that the ultimate goal through this legislation and legislation like it is to shove us all back into a closet, to destroy our relationships and shame us into living the lie that the social conservatives wish us to. They simply wish us not to exist.

    Now, we can talk about destroying personal and public property all we want, but that will not in anyway provide us with our rights. Take to the streets, yes, but do it every day. Take to the streets the days following a march, by doing something very simple.

    In the 70’s, and prior to that, the social conservative movement didn’t want to know about our existence, and they tried to demand that we retreat into the darkened recesses of our lonely apartments and sad little houses. Those gay rights activists at the time took to the streets, come out of their closets and made themselves ever more visible in order to reveal themselves to those who feared them, and demonstrate that we were human beings, not the deviants to be feared that the far right wanted to depict them as being.

    Society at large now is comfortable with us as individuals, but they remain somewhat concerned about our relationships. We live behind the Orange Curtain in Southern California, and we have made a point to hold hands, put her arms around one another, kiss good-bye at the airport. Over time, the issue of what children learn about gay relationships will fall away, and since we are on a roll in winning our rights, they will fall away all the more quickly.

    If you are in a relationship, and you feel safe doing so, please take the hand of your partner. If you are not in a relationship, and you feel safe in your environment, please take the hand of your friend or buddy, even if it feels odd. If you feel safe where you are, please help us to take our relationships out of the closet and through the closed doors. There will be more power in that simple little act than spray painting every Mormon and Catholic church between So Cal and Maine.

    So, get out there, march, walk, take to the streets…not just on Tuesday, but every day thereafter. My husband and I thank each and every on of you for all your support for our marriage, for your own, for that you may have in the future, and for all the other 18,000 marriages that now exist in California.

  • schlukitz


    How elegantly stated. You brought tears to my eyes. Not of sadness, but of the celebration of being a loving human being who is not afraid to show that love.

    I celebrate your love. I celebrate your marriage and I celebrate your commitment to your partner.

    May you both have much happiness.

  • Mike

    Hi, nice posts there :-) thank’s for the interesting information

  • Schteve

    @The Gay Numbers: You misunderstand me; I’m not talking about their In Re Marriage Cases decision. Rather, months after the fact, opponents of Proposition 8 asked the court to remove it from the ballot before the election on the same revision versus amendment grounds as is now being contested. The court denied to hear that case in the hopes that they wouldn’t have to rule on the matter.

  • Dan Cullinane

    To Judy, Mike, and Matt, and all of the California newlyweds:
    I will be keeping my fingers crossed from now until Tuesday, in hopes that the pessimists are wrong. Good luck with this California, Tennessee is rooting for you!
    PS: Nice to see people getting riled up about something other than American Idol!

  • Joanaroo

    I’m hoping that Tuesday is a day of celebration for the LGBT community in CA, the US and worldwide. In this day and age everyone should be able to marry as they choose. For a country that espouses freedom of religion, freedom FROM someone elses religious beliefs should be a part of that. Will be waiting to hear the decision!

  • MackMike

    @schlukitz: Thank you so very much, Schlukitz. Your words are so very heartwarming, and I will carry them with me throughout the day on Tuesday!

  • The Gay Numbers

    @Schteve: There was no basis at law for them to remove it from the ballot. Their decision had nothing to do with them being political unless CA law is so different, and says they can rule on a case before there is a real, rather than theorectical, controversey. Courts do not take cases on like this unless the controversy is real- this means that a law has been passsed that is the subject of the question of consitutionality. Before that, they can not act to say its unconstitutional.

    However, there is a basis at law to narrowly tailor a ruling to make certain that you are not overbroad than what you intend. In Re Marriage remains either correct law or judicial irresponsibility because they would be overly broadly to write what they wrote if they also believed that it was merely a procedural technical concern (CA Code versus Amendment to the Contitution) versus substantive (new fundamental right and new suspect class of EPC). There were narrow ways they could have responded to the case in In Re Marriage that they choose not to do.

  • The Gay Numbers

    @Schteve: I have no idea how they will vote. I think its 50/50 and that many of you may be right to be pessimistic. I certainly feel that way given our culture. But, the argument you are using, at least in a legal sense, is not a tea leaf to let us k now what will happen. As I said above, they could not have ruled on the case before hand since that’s not the way the law works. It is not a political concern as far as I know.

  • Schteve

    Check out http://www.metnews.com/articles/2008/legcomm061708.htm

    Speficically: “The George Court has already unanimously determined pre-election review is not precluded when the challenge is based upon a claim that the initiative may not properly be submitted to the voters because it amounts to a constitutional revision rather than an amendment. (Independent Energy Producers Assn. v. McPherson (2006) 38 Cal. 4th 1020, 1029 (unanimous decision & opinion written by Chief Justice Ronald George).)”

    The courts can and have taken up the issue of whether something is rightfully on the ballot before the election happens. It wouldn’t be unheard of at all had they decided this case before November; though as I said it would be a rather poor decision on their part given the political circumstances.

  • The Gay Numbers

    @Schteve: As I said- CA law may allow such things. They seem to have a really fucked up legal process in general so it does no surprise me. The justices themselves seem contribute to that screwed up process in their rulings. That , in effect, means they are not worried about things like ripeness in a case? Which is bizare since you are in effect answering questions that may not even turn out to be an issue you yet. In other words, if the public had voted down prop 8, then they would have ruled on something that did not require a ruling. By the same token, the fact they are willing to swing so wildly in a year does not give me any great confidence either. More than that it means they can have a lot of bullshit wild swings- most courts worry about precedent and not having such wild swings in constitutional law. Perhaps, CA is different.

  • The Gay Numbers

    @Schteve: By the way, I agree absolutely that this , if true, reflects very poorly on these justices. The idea that they would drag people through this when they knew they were already in favor of a Proposition being able to overture their position seems fucked up to then have wrote what they did in In Re Marriage. We will see Tuesday. But if they are not consistent with that language then they seem not to care at all about overall judicial consistency.

  • el polacko

    remember that, even if the justices support equal marriage rights, they were not asked to decide that. the case that was presented to them was whether the vote result constitutes an amendment to or a revision of the state constitution. at the hearing, they did not seem to keen on the idea of invalidating the right of the people to vote for changes to the constitution. i thought from the beginning that we should have argued on equal protection grounds instead. the court can only decide the case with which they are presented.

  • Alec

    @Schteve: The Court can issue decisions on the validity of a proposition in the face of a constitutional revision or single subject challenge (the latter, in particular, as propositions that violate the single subject rule are not even supposed to be submitted to the electorate). That’s not, however, standard operating procedure, and courts have invalidated initiatives as unconstitutional revisions after they were passed by the people.

    In fact, Independent Energy Producers Assn. v. McPherson is not exactly on point; it presented similar but distinct issues (the statutory, not constitutional, initiative power was at issue, for example).

    This is what the Court had to say about preelection review in revision and similar challenges:

    Nonetheless, although the strong presumption against preelection review does not apply to such a claim, we believe it is appropriate for a court presented with this type of preelection challenge to keep in mind that unlike the type of procedural challenge relating to the petition-circulation process at issue in our recent decision in Costa, supra, 37 Cal.4th 986 — a type of claim that, as explained in Costa, generally can be remedied only prior to an election and that usually will become moot after an election (see id. at pp. 1006-1007) — a contention that an initiative measure is invalid because the measure cannot lawfully be enacted through the initiative process is a type of claim that generally will not become moot if the initiative is approved by the voters at the election. (See, e.g., Bramberg v. Jones (1999) 20 Cal.4th 1045 [postelection decision invalidating initiative that instructed, and indirectly attempted to coerce, federal and state legislators to propose a specific federal constitutional amendment]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 349-356 [postelection decision invaliding one section of Proposition 115 as a constitutional “revision” that could not be adopted by initiative].) Because this type of claim is potentially susceptible to resolution either before or after an election, there is good reason for a court tobe even more cautious than when it is presented with the type of procedural claimat issue in Costa before deciding that it is appropriate to resolve such a claim prior to an election rather than wait until after the election. Of course, as this court noted in Senate v. Jones, supra, 21 Cal.4th 1142, 1154, potential costs are incurred in postponing the judicial resolution of a challenge to an initiative measure until after the measure has been submitted to and approved by the voters,and suchcosts appropriately can be considered by a court in determining the propriety of preelection intervention. Nonetheless, because this type of challenge is one that can be raised and resolved after an election, deferring judicial resolution until after the election — when there will be more time for full briefing and deliberation — often will be the wiser course.

    So the strong presumption against preelection review of constitutional (state or federal) challenges to initiatives is inappropriate in such cases, but judicial deference “often will be the wiser course.”

    That’s all that happened here.

  • The Gay Numbers

    @Alec: So, things are not completley out of whack with con law eslewhere.

  • Alec

    @The Gay Numbers: Oh, they are absolutely. I mean, where to begin? It isn’t an undue burden for a woman late in her pregnancy to be prohibited from seeking an abortion even if it endangers her life, gays have only limited protection from government sponsored discrimination, criminal defendants have no rights to speak of, powerful interests are well protected, etc. Much is wrong and “out of whack with con law elsewhere.” Just not that out of whack in California, all things considered.

  • The Gay Numbers

    @Alec: True. 30 years of packing the courts with reactionary activists will do that. From the Constitution in Exilers to the hardcore reactionaries, it is a big bag of conservative poo. I agree.

    As for CA, we will see how out of whack they are on Tuesday. They are deciding whether to eviscerate one fundamental section of their constitution for political reasons rather than the more legally tolerable revision, which would protect both sections.

    That’s what we are discussing- how hard it should be for majority to vote away fundamental rights? Not whether they can or not. Somewhere in the politics- I fear this may be lost.

    I say this case is 50/50 because I keep reading the experts say they expect the Court to split the baby in an illogical way: upholding the existing marriages and validating Prop 8. This is illogical because I do not see what would protect the existing marriage beyond the emotions of invalidating them. I do not see how the majority lacks protection if they are required to amend through a revision.

    But, others say I am wrong, and the justices may agree with them. Therefore, I accept that it is 50/50.

  • The Gay Numbers

    What do you think our chances are?

  • Alec

    @The Gay Numbers: I am almost 100% certain Proposition 8 will be upheld as prohibiting future marriages. I would welcome a miracle, but unfortunately, I think the justices were unmoved by the arguments it was unconstitutional.

    Even so, I think they will include language that limits it to “a jurisprudence of nomenclature.” That is, they’ll make it all about the term “marriage.” Or at least, suggest that a constitutional amendment rescinding domestic partnership rights would face heightened scrutiny and be invalidated. I think that view is wrong headed, but I think the outcome is almost inevitable.

    I think existing marriages will be safe. First, invalidating them would raise federal constitutional issues and, more importantly, the “wherever and whenever performed” language is way too ambiguous for retroactive application of an initiative. The presumption is that an amendment will apply only prospectively.

    Anyway, I’d say our chances of invalidating proposition 8 are slim to none here. But I’d say the chances in 2010, 2012, 2014 and 2016 are great, and more importantly can serve as a model for how to undo those other constitutional amendments that the gay community in CA has overlooked. Just a parting thought.

  • The Gay Numbers

    @Alec: So in essense they will not have a meaningful equal protection clause then. I mean – if In Re marriage is to be taken seriouly which I increasingely sensing the answer is no it was not meant to be a serious act by them. Also, equal protection at the ballow box is not equal protection. The problem with your argument is that every 2 years we could be fighting this over and over again. Indeed, have seen that with the abortion issue in CA- where they repeatedly get things on the ballot trying to limit it and screw with the right under CA law.

  • Alec

    @The Gay Numbers: Well, the equal protection clause of a state constitution can be amended. So the court can take it very seriously, but voters can always override it by amending it to obtain a different result…which is what this litigation is all about. Many states (Northeastern, mainly) require a supermajority to make that kind of a decision, or at least require that the process be more onerous.

    “The problem with [my] argument” is that it is a fair statement of the law as it stands today. And yes…I think that the abortion comparison is appropriate. Although I think that a single victory for marriage equality will end the question in CA.

    Believe me, I wish the law was more protective of minority rights. But there’s what the law is and what we wish it to be. If I was on the CA Supreme Court I would undoubtedly approach the revision argument differently than the current justices will on Tuesday.

  • The Gay Numbers

    My only point is that the law is meaningless as described. I am not wishing for anything other than they have the courage to admit it. But, what can I expected in a country that puts a guy on the U.S. Supreme Court who argued at his confirmation hearing that it was reasonable to say that a person working in a mine is not a mineworker for the purposes of circumventing statutory protection for mine workers (Alito). I think this country is nuts.

  • Bri

    Day of Decision is tomorrow so if you live in an area that doesn’t have events planned then you should get on it. I noticed Rhode Island doesn’t have anything planned.


  • MadProfessah

    @Alec: Agreed. We have a 50-50 chance of winning tomorrow, which is better than most people thought.

  • The Gay Numbers

    @MadProfessah: Alec is saying we have no chance of winning tomorrow. I am saying its 50/50.

  • Marion from Germany

    I hope and wish the best for you in California, I´m watching the development in the states, cause this is global issue. In Germany we are on the same way.

  • Schteve

    @Alec: Yeah, they always try to avoid doing that. Again, the safest course of action for them is to wait and see if their decision is even necessary.

    @The Gay Numbers: It is meaningful to the extent that exceptions can be amended to it, like Alec said. It’s not like all equal protection immediately flies out the window…it just has to be voted on first!

  • The Gay Numbers

    @Schteve: It’s not meaningful equal protection if it is determined by 50 plus 1. It’s as simple as that.

    You can dispute with me about what California courts will or will not do tomorrow. But there is no doubt that in upholding Prop 8, they are overturning conceptually equal protection analysis as American jurisprudence has understand it.

    Each amendment is not only subject to 50 plus 1, but subject to being challenged every 2 years with new ballots. So, it also promotes instability as to what rights couples will and will not have. Why? Because the amendment process each time can be used, and saying that it will be subject to heighten scrutiny is meaningless since the same rational that says that one can define marriage as between a man and woman can then be used regarding other amendments too. There would be nothing judicially to prevent it.

    But , given CA financial predicament, which also is the product of misguided over reliance on direct democracy, that’s not a surprise.

  • Bruno


    I’ve been thinking a lot about the idea that the justices will uphold both prop 8 and 18k existing marriages, and it just doesn’t make sense to me. Let’s say they do rule this way. We then live in a place where “only marriage between a man and a woman is valid or recognized…,” but there are 18k non-man/woman marriages? With no explicit clause or statute that delineates why or how these marriages are exempted? How can they possibly do that?

    That’s why I think *if* the justices were ruling correctly on this, it would have to be an all or nothing situation. I’d like to think they could even apply the fact that the people were unaware of the retroactivity issue, and that might contribute to prop 8’s status as a more sweeping revision-type deal. But I doubt that…and we may just see one of the strangest situations for a “minority within a minority” to ever have occurred after this ruling.

  • atdleft

    @Bruno: Agreed, Bruno. I also think we’re more likely to see an “all or nothing” decision tomorrow. Here’s why:



    Basically, the judges will be creating an unprecedented legal quagmire for the LGBT community if they create a subclass within our community that’s granted marriage rights while the rest of us are given something else. Also expect this subclass of “limited edition marriages” to face a HUGE mess of legal entanglements over recognition, benefits, and which out-of-state marriages are recognized and which ones are not. It would just be too messy if the “let H8 stand AND the 18k marriages stand” ruling is given, so I’m really doubting the court will go there.

    Perhaps if the judges try a “third way” route, they’re probably more likely to allow H8 to stand while also demanding the Legislature do away with any more civil marriages and create a new class of civil unions for gay AND straight couples. But since this ruling will throw all of California into the crosshairs of DOMA if given, I don’t think this ruling is all that much more likely.

    So really, we’ll probably see either a ruling that upholds H8 and recognizes the 18k marriages as only “common law marriages” or DPs or something similar to either… Or the court will just toss out H8 altogether and let freedom ring for good this time. I’m hopeful we’ll see the latter, but there’s no way to know what they’re planning to do.

  • atdleft

    @The Gay Numbers: But then again, I think the judges were really scared by Ken Starr’s argument that ANYONE’S rights can be taken away by a mere referendum. Even Justice Corrigan, who had voted against us last year, was asking him tough questions on the ability of voters to strip anyone’s fundamental rights whenever they want. Certainly Justices George & Kennard, who didn’t seem friendly at first, changed their tones when Starr was going down this road.

    This is another reason I’m not buying the media hype. Again, there’s certainly a possibility the judges will chicken out and pull some “Bush v. Gore” crap tomorrow. However considering the real threat to not only LGBT civil rights but the civil rights of other minority groups (like immigrants, as we’re likely to see “Prop 187 Redux” on the 2010 ballot), I have a feeling they’ve been taking so long to rule because they’ve really been thinking this over… Or at least I hope so.

  • The Gay Numbers

    @atdleft: I have no clue at this point. I just Alec’s argument unconvincing as to precedential value. You can not reasonable limit this ruling unless you pull a Gore v Bush S Ct decision in 2000. I know Alec’s believes the nomenclature argument but ultimately that’s a form over substance argument about what the Court will be doing. They would be taking away fundamental rights by bare majority vote. There is no other way around that in terms of its practical implications to immigration, race, religion and other suspect classes and their fundamental rights. I doubt we will see an immigration bill in 2010, but you never know. I do expect more CHristian conservative assaults on marriage equality even if we pass a ballot effort in 2010.

  • Sam

    @atdleft: Amen! A ruling upholding Prop 8 but saying it doesn’t invalidate the 18,000 marriage performed in the interim would create a huge legal quagmire. Even if it is impeccably written, it’s surely going to create more questions than in answers.

    For example: what about all the out-of-state same-sex marriages performed prior to November 5, 2008? I was married in Massachusetts in 2004. If I had moved to California in the interim period while same-sex marriages were allowed, my marriage would have been recognized under California law.

    So if I move to California after a ruling that Prop 8 is upheld but not retroactively, am I married under California law or not? Does a prohibition against Prop 8 being applied retroactively only apply to marriages of couples whose marriages were actually recognized by California in the interim period? Or does any marriage that was theoretically valid on November 4, 2008 qualify? If that’s the way it goes down, expect a big mess.

  • atdleft

    @The Gay Numbers: Don’t doubt it, Gay Numbers! The anti-immigrant wackos are already planning for June 2010!


    You see, this is one of the reasons I have hope for tomorrow. Again, it’s always possible the judges will try to punt this larger question of minority rights a la Bush v. Gore. However with the radical right planning more attacks on LGBT rights as well as a renewed assault on immigrant rights, I suspect they are really looking into this problem and what they can do NOW to solve it.

    @Sam: Precisely, Sam! If this “split decision” happens, which Massachusetts marriages will be recognized in California and which ones won’t? Only couples who married before November 4, 2008? Only couples who moved to California before November 4? This just proves my earlier point that this would be so ugly and messy that I doubt the court really wants to go this route.

    Again, I guess it’s always possible… I just hope they avoid this dilemma altogether by just reaffirming what they said last year.

  • The Gay Numbers

    @atdleft: Wow. I did not know that about the immigration issue. Like I said, these people who voted for this voted against their own interest without even knowing it.

  • strumpetwindsock


    Ah! So THAT’s what three strikes was all about!

    Once they get rid of the immigrants and have no one to do their housework they’ll start using lifers from the prison system to do all their menial labour.

    And I bet you all thought Abe Lincoln pulled a fast one on them.

  • The Gay Numbers

    @atdleft: By the way- the articles at your site are excellent. I found the CA family law attorney’s perspective higly useful. Often times here, we seem to be just basing it on what we feel or “experts” say they feel. Nice to see analysis of what were teh arguments and relative impacts- I wonder if they will indeed then end up with civil uions for all.

  • Chitown Kev

    Now this is a good and quality discussion…

  • mikeandrewsdantescove

    I got married before the deadline. I’m seriously considering going back to my home state of Iowa to redo the marriage if it’s overturned.


  • jason

    The notion that we gays will be out in force if Prop 8 is upheld is really laughable. Yes, we might get a few thousand. But a force? I doubt it. You’re more likely to see gay men in bars waiting around for their next fuck.

Comments are closed.