California Gay Marriage Showdown Set For March 5th

killbillweddingchapelThe 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.

The L.A. Times breaks down the unprecedented scope of Prop. 8 and of the upcoming trial:

“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.”

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  • brmcmanu

    Is that the chapel at “Two Pines”? Love the juxtaposition.

  • Sam

    O nice catch brmcmanu

  • Jonathan

    Yes… it is the Chapel at two pines that set this whole gory story into motion.

    I’d be interested to see who will appear to argue the case. I’m assuming that with three hours, a number of the amici will appear.

    I’m not entirely familiar with the personalities on the Court, but I suspect that Barnett’s analysis is a little too conservative, while Brown’s argument strikes me as a non-starter.

    First, the Court obviously can revise its own precedents on what constitutes a “revision” of the state constitution. It is bound by its own prior precedents only to the extent that it wishes to be or that stare decisis requires. And this has got to be an uncomfortable place to be bound by stare decisis. After all, marriage is a fundamental right, and allowing a simple majority vote to overturn equal protection principles involving a fundamental right has got to *feel* wrong to members of a court who were willing to interpret the state constitution to require same sex marriage before the Propp. 8.

    Second, Brown’s argument creates a legal morass. How are you supposed to determine whether a proposition was passed for a compelling purpose? Look to see whether each voter has a compelling interest in mind? Do you look to the “purpose” of the Proposition in the filing papers? (Is there such a thing?) Do you look at the arguments aired in the run-up to the vote? In essence, Brown is asking the Court to review Prop. 8 under the standard that it would use to review the constitutionality of legislation (e.g., at the federal level for legislation that affects a suspect class of persons, we ask whether the legislation is narrowly tailored to promote a compelling government interest). It strikes me as non-sensical to do as Brown asks when the Proposition changes the very constitution from which the Court derives its powers. After all, presumably *by definition* Prop. 8 moved the goalposts on what discrimination is allowed under California law and what isn’t.

    Logically, the only challenges to the enforcement of Prop. 8 are:

    1. It didn’t really pass (i.e. a recount);
    2. It was procedurally flawed (i.e., it wasn’t properly before the voters);
    3. It violates a higher standard of California law (i.e., it was a revision, not an amendment); or
    4. It violates federal law and so cannot be enforced (this is not a question I would like any federal court to have a go at, until at least one or more of Scalia/Thomas/Roberts/Alito is off the U.S. Supreme Court).

  • alex the sea turtle

    I am not feeling confident that it will be ruled in our favor. But I am not sure it won’t be either. The part that I think Prop 8 trips over itself on is the existing marriages. The proposition was not written to be retroactive so they shouldn’t have an affect on existing same sex marriages performed. If they don’t affect those then how in the world could you have a some legal recognized and others not with out it being some odd revision.

    But the Prop 8 people now say the state of CA shouldn’t recognize the marriages that have already been preformed but other states that do recognize them will. Well I think that then says this is not specifically retroactive but it is still working in a retroactive manor. How would that be possible without this being some strange revision.

    I think they have to decide about the existing marriages first and to do it in our favor. If that happens then our odds go up and I feel fairly confident that our existing marriages will be respected and honored.

  • Steve

    The part of the constitution that guarantees “equal protection” has not been amended. The court has previously ruled that gay people have a right to equal protection. That previous ruling has not been overturned. Equal protection is the very foundation of our system of laws, so it is extremely unlikely to be overturned. Giving the protections that are called “marriage” to some people but not others would be a direct violation of that foundational principle. The only real question is, how best to enforce equal protection?

    There really are only two ways:
    1. To declare that amendment 8 is incompatible with other parts of the constitution, because it conflicts with the equal protection guarantee, and hence is invalid; or
    2. To rule that the state may not recognize marriages of gay couples, and may not recognize marriages of any other couples, either.

    Because of the equal protection guarantee, any right that is denied to anyone must be denied to everyone. Hence, if gay couples may not marry, then no couples may marry.

    I suspect that choosing alternative 2 would result in a mob lynching of every judge who signs the decision. So, even if by some circuitous reasoning, they will find a way to arrive at alternative 1.

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