UPDATED.
It’s on. The California Supreme Court ruled today that it will hear lawsuits filed by marriage equality advocates to overturn Proposition 8, which banned same-sex marriage in the state, though the court has refused to prevent the ban from going into effect.
The high court’s decision paves the way for what is certain to be one of the largest and most closely-watched civil rights cases in U.S. history.
The court has decided to handle all aspects of the Prop. 8 controversy in one case and when it convenes next year, it will answer the following questions:
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
“Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
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 court directed Attorney General Jerry Brown and Yes on 8 lawyers to submit arguments by December 9th and gave the plaintiff’s til January 5th. The court gives amicus curae or “friend of the court” briefs til January 15th to be filed, with responses to those briefs due by Jan. 31. Court spokeswoman Lynn Holton said the court may hear the case as soon as March.
The battle over Prop. 8 has already led some of the measure’s supporters vowing they will stage a recall of any judge who votes to overturn the proposition, which is an option under California law. Legal scholars agree that the Supreme Court has very little prior case law on which to base their decison, which will make the decison to overturn the will of the voter’s all the more difficult.
The Supreme Court also removed Secretary of State Debra Bowen from the suit while adding the official proponents of Prop. 8 . The Campaign for California Families sought to be added as party to the lawsuits out of fear Attorney General Jerry Brown would not properly defend the proposition, but the Supreme Court denied their request.
The State of California, the Attorney General, the State Registrar of Vital Statistics, and the Deputy Director of Health Information and Strategic Planning of the California Department of Public Health have all be ordered to show cause as to why Proposition 8 should stand.
Tony
Calif. Supreme Court to take up gay marriage ban
California’s highest court has agreed to hear legal challenges to a new ban on gay marriage, but is refusing to allow gay couples to resume marrying until it rules.
The California Supreme Court on Wednesday accepted three lawsuits seeking to overturn Proposition 8. The amendment passed this month with 52 percent of the vote. The court did not elaborate on its decision.
All three cases claim the ban abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/11/19/state/n135549S84.DTL
J
So do we have any idea when the Supreme Court will actually hear the cases now that they’ve agreed to do so?
Nate
This is good news. I am confident that the CA Supreme Court will overturn Prop 8. I was also confident that a majority of (so-called liberal) Californians would not vote yes on Prop 8.
Let’s hope I’m not wrong twice.
Tin Tin
This feels like the neverending story.
JPinWeHo
@J: since the last reply is due in late January, I expect sometime in February. The court will hear this matter on an expedited basis, I would imagine.
I’m a bit scared that the Court is hearing the issue of whether pre-Prop 8 marriages are valid, since neither the writ petition or the CA AG asked that issue to be decided.
J
latimes is saying the case will be heard in march.
http://www.latimes.com/news/politics/la-me-prop8-supreme-court20-2008nov20,0,4034655.story
arjuna52
Former governenor and now Attorney General of the State of California has to defend Prop 8. He’s a progressive and most surely would have been against it. How’s he going to be able to work with the Yes on 8 folks?
The Gay Numbers
This is really good. This, at the very least, means they have been convinced that this is a serious issue that needs to be addressed. They did not dismiss the No on 8 arguments out of hand. True this was procedural, but they could have used procedure to simply say prop 8 was right by not taking on the case in full. It would seem that regardless of how novel our position is or the issues involved in the case- they take this issue very seriously to expedite the review of the constitutionality of this issue.
DaveO
This is all well and good, but I hope there will still be an effort to gather signatures to get repeal of Prop 8 on the 2010 ballot.
Congrats!
White powdery substances mailed to Mormon Temples and Knights of Columbus buildings!
Congratulations Anti-Prop 8 folks. You have now joined the realm of the terrorists. Your messages of love and peace and understanding have just turned into a message of hate, religious discrimination, racial discrimination, and violence. You have just showed America exactly what you are!
RyanInSacto
How do you know that anti-prop 8 people mailed that powder? How do we know that YOU didn’t do it?
Bruno
@Congrats!:
Thanks!
J
Thought: doesn’t the very fact that they took the case at all indicate a decent chance they’ll decide that Prop 8 isn’t a proper amendment? I mean, otherwise, why would they have bothered?
Bruno
@J:
It means there’s a better chance than if they didn’t hear the case 🙂
This one seems like it would really depend on how courageous the court is. They’d have to in essence create a new law that says a majority can’t rescind a minority right by amendment. May’s ruling shows that they may indeed be brave enough to do the right thing.
ask ena
Ignore”Congrats!”, he knoweth not what he speaketh…
This “recall” stuff is the worst…I hope every one of those conservative judges determines prop. 8 to be invalid. Are they going to recall every one of them? You’d think this recall business would make the judges even more determined to do the right thing.
Another pathetic example of bullying from the moral(ly corrupt) majority…
InlandEmpire
Maybe bad news! We lost J. Kennard who voted for same-sex marriage in the re Marriage case. J. Kennard stated he would have denied the petitions to invalidate Prop 8.
4 – 1 = 3 Justices
The Gay Numbers
@InlandEmpire: I disagree. She said that she wanted an impact process regarding the gay couples already married before Prop 8 was passed . She said she would have wanted this and dismissed without prejudice meaning that once this separate procedure (a trial of facts question) had been decided- then they could come back. Instead , the other justices decided to hear without this. THere is no indication from that how she will vote. If anything, its a sign of where her sympathies lie.
JPinWeHo
@J: not necessarily. I am more worried by the fact that Justice Kennard did not join in the Court’s order and would have DENIED the writ petition. I believe that’s a bad sign (someone correct me if it isn’t) becuase J. Kennard was one of the Justices who originally ruled in favor of gay marriage. If Kennard would have denied the petition, I believe it means that Kennard feels there is no merit to the idea that Prop 8 is merely an amendment. Bad news for us – if the judges rule on the writ petition in the same way they ruled on gay marriage originally, we will lose w/out Kennard’s support.
InlandEmpire
@The Gay Numbers: I hope you are correct in the interpretation!
InlandEmpire
I believe Justice Joyce Kennard wanted a separate filing to determine the fate of existing same-sex marriages because she believes the petitions should be denied. I hope I am wrong in this interpretation.
JPinWeHo
@InlandEmpire: That’s the way I read it. She would have denied the petitions (i.e. she feels that Prop 8 is valid) but would have permitted a separate suit regarding the pre-Prop 8 marriages to continue. Poorly worded order for the CA Supremes. I think this is bad news.
sparkle obama
@Tin Tin: @<a
This feels like the neverending story.<<
yeah, and it started in the ancient world, didn’t it?
you have a right to be frustrated, but have some perspective.
plus, compare Our live to those of american Blacks in the 50s south.
they had almost *no* rights in practice – We have literally *every* right save one (set of rights)…
i think all the organized, positive demonstrations have been great, but you know, dry your tears and keep your eyes on the prize.
The Gay Numbers
@JPinWeHo: She would have simply said separately I would dismiss without the ability to refile if she believed the question of Prop 8’s constitutionality were settled. If she were leaning that way, it would have been in her writing. I see no practical reason for her to say people could refile on other questions if those questions are settled in her mind. I could be wrong. I think many of you are over reading what seems like a procedural judgment.
The Gay Numbers
ok I am wrong.
Bruno
I wouldn’t read too much into Kennard’s action…I don’t think any of these judges are necessarily totally sold one way or the other.
Bruno
OK, in looking over the statement involving Kennard, my reading is that she wanted a more cogent case before the court regarding the validity of the 18,000 marriages. It seems to me she’d want the status of those marriages addressed before any of these other arguments get settled. All it means is those marriages would play a big part in her consideration of proposition 8’s legality.
ask ena
wow..d’you guys all go to law school or something?
DaveO
Re:Kennard
One thing I’ve read elsewhere is that Kennard likely wanted the question of the legality of Prop 8 to be sent to lower courts first, except to the immediate issue of what to do with the marriages already granted.
mgh
I have to agree that Justice Kennard’s vote (which was indeed one of the pro-marriage-equality four) is the first and most immediately worrying thing that popped out at me. I’m hoping that it only means she would want it the case to wind its way through the lower courts first, and that it doesn’t mean that she thinks it has no merit. I suppose the succor we have is that likely at least one of the anti-marriage judges thinks it has no merit, and probably voted for it anyway. But who knows?
What’s more interesting to me is the question presented. The justices didn’t have to choose the separation of power argument. I haven’t read all the briefs closely, but that wasn’t something that was particularly focused on by any of them. In itself, that argument doesn’t point to overturning Prop 8. But if the justices decide that Prop 8 does in fact alter the separation of powers in the California Government, then Prop 8 is a revision and not an amendment.
Quite a hint.
JPinWeHo
@mgh: I completely agree with you. The separation of powers argument was a shock and gives us a second bite at the apple with the court. I’ve also seen the commentary that #28 notes – hopefully that is why Kennard dissented.
Here’s hoping for March weddings.
The Gay Numbers
The separation of powers argument goes to the core of the issue over equal protection analysis, whether the courts control it or a bare majority. I am not sure what people are referring to here that it’s not a good thing. It’s actually the heart of the petitions filed. Equal protection analysis is buried within this argument rather than separate from it. In other words, the separation of powers argument if I undestand it is who gets to decide equal protection- the courts or a bare majority of voters?
Bruno
It’s kind of funny that the Yes on H8 groups would tell the court they think Jerry Brown wouldn’t do a good job defending in court. Considering that these are the same people that ran TV ads bemoaning the overreaching activist judges who’ll be hearing this case as well.
Tim
One of the briefs file in support of Prop 8 was made by a church on behalf of “the Almighty Everlasting Creator” and sights Genesis as its support complete with unnecessary exclamation points
http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-letter-denial-heaven.pdf
mgh
@The Gay Numbers: But the people have the right to amend or revise the constitution, and to so alter the separation of powers if they wish. Neither the separation of powers nor the equal protection clause exist independent of the constitution. So simply saying “bare majority” or “courts control” too many times doesn’t end the question, particularly in a country that has a history of writing minorities out of the constitution and restricting courts.
So the separation of powers argument is only important insofar as it goes to the revision/amendment distinction, and I don’t think has independent effect. Plus, why would the court go there (i.e., why would the court reach for the argument that equal protection could neither be amdended NOR revised), when it has an easier, more palatable argument sitting there?
mgh
@mgh: just wanted to say, my post sounds snarkier than I mean it. you do raise a good point, gay numbers, that it’s technically possible for the separation of powers argument to have an independent effect. that would be true if this were just a statute. but when you’re dealing with constitutional amendments, I don’t see that flying.
The Gay Numbers
@mgh: Actually, this is the old civics 101 lesson – you know- the legislature passes law, the executive executes laws and courts interpret the constitutionality of laws and proceses. The court is doing that here. It’s asking some very basic questions.
The question is whether the voters were in allowed to make this the decision the way they did in the first place? You can not answer that by saying- but they did vote. The question is whether they had the power to use this procedure in this way?
did they use the right process? to answer that question the court is taking a step back to ask who is responsible for making the decision? the courts or the voters? if the voters, then how are they suppose to do it?
the first question is the separation of powers question. to answer that you must decide who is responsible for equal protection. the voters or the courts? do you see how this is seperation of powers? think of the voters here acting as a kind of legislature (in effect what the iniative process is). again civics 101. can the voters acting as legislature change the power of the courts by the process they used?
a law or amendment is not valid if its not the correct process. For example if someone were to say that they passed an amendment to the U.S. Constitution, but they did not go through the correct process as required by the Constitution- then it wouldn’t be an amendment. the same is true here. You are getting caught up in “the process is right because the process happened.” That does not make it the right process no more than a majority vote would make an amendment to the US constitution valid if it were passed by the wrong process.
It goes to the heart of what would fundamentally change the documents meaning because by passing Prop 8- the question is did you usurp the Courts role? Its a hard question given CA’s system. It’s also a novel one.
You and others are actually engaged in the sophist’s argument. Remember there re two processes here that could have been used to pass this. You are saying because it was voted on by amendment that’s the right approach. Whereas, the Court asking- was it an amendment if the right approach was not used. By using the wrong process did they usurp the power of separately given to the Courts.
You assume that the right approach was used. They do not. See the difference?
mgh
I am not assuming the right process was used, and you’re ignoring the point.
Answer me this and then we’ll settle our difference:
If the voters had properly revised the constitution to include prop 8, would you still raise your argument, or not?
DaveO
I can’t see the initiative vs amendment argument being a huge distinction. In Cali you need singatures from 5% of the voters to put an initiative on the ballot; for an amendment, it’s 8%. In each case a bare majority is needed for passage. If the court held that marriage was so fundamental that the initiative process was insufficient to revoke it, they may hold the same for the amendment process. The only distinction between the two is 5 vs 8 % .
mgh
@DaveO: it’s not initiative vs. amendment. it’s amendment vs. revision. a revision has to go through the legislature.
The Gay Numbers
@DaveO: Your question is pardon my French- kind of retarded. You pressume to know me, but in asking the question you shoe that you really do not.
You are asking me if they had in fact used the correct process then would I argue they had not? The answer is no. I would not argue that. I am not a sophist. I am trained as a lawyer, and that means something to me. This is not a means to an ends discussion for me like it is with a Christian/right wingnut.
The fact is regardless of the gay issue I would feel this way because I do understand separation of powers and the history of equal protection analysis. Why it exists. Who is suppose to administer it. This is why I actually found both the Council of Church’s petition and the petition by the NAACP Legal Defense Fund so compelling regarding overturn 8.
Gay rights is a happy benefit,b ut its not the central thrust. If the revision process had been used, and the amedment passed, I would have advocated a political process.
But the reason that question is retarded is primarily because- that’s not what happened. You are asking a hypothetical about which I have already said that’s why I view this as a separation of powers question.
Its not like separation of powers even at the federal level can not be changed. its more like, again , there is a correct way to do that. If you do not do that proces- which has at its base the point of real deliberation versus what happened in Prop 8’s lead up, then you should be required to do so.
If after this the Yes on 8 are able to gain what they want through revision. Fine. I won’t like it. but I would advocate a diferent strategy than super majority (which again is designed actually to make the process of taking away rights and changing fundamental structures conservative and rare). THis is that way for a reason. Mob rule. Short term thinking. Etc. All the things the framers worried about.
I have yet to hear a compelling argument given the broadness of the application that would occur if this basic equal protection analysis is overturned without the proper procedure. I see these procedures as protections built into the system to properly protect the minority but also make sure you balance the majority. Remembere all that is really required here is a majority much larger and thus theorectically much more deliberative than the one which decided Prop 8. Its not a perfect approach but over the course of our history it has tended to yield better results.
By the way, Dave’s point is that if the Court were just trying to avoid a technicality of 3 percent , when they knew that Proposition 8 was going to be decided in the Fall, then that would be a pretty big failure on their parts as officers of the court to perform their jobs properly. I am not saying which way they will go in this case. I am however saying their prior ruling, and its language offers a hint as to who they believe controls equal protection in term s of both history, precedent and struture of CA’s constitution.
The Gay Numbers
my post is for MGH, not Dave
mgh
@The Gay Numbers: okay, now am I being derisive: you might be a lawyer, but I don’t think you understand these arguments at all.
and, as someone in the gay rights movement, I can tell you this conversation is not sheer sophistry for me either. tomorrow I’ll go to work and make change. what will you do?
The Gay Numbers
@mgh: Well, that was a quick change of subject. Make a conclusionary statement: you do not understand the situation here at all. Add a comment about how you are a gay civil rights worker. Then finish off by making it about how I am not a gay civil rights person.
You maybe right with your conclusion, but one think I am certain of is your opinion on that is not relevant to me. I compare my understanding to people I know are working in the area of civil rights law- you know again the NAACP Legal Defense fund, and I note that my arguments are identitical to theirs. I read the petitions. I am guessing you did not.
The Gay Numbers
The Petitions
http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
NAACP
http://equaljusticesociety.org/prop8/
Additional Analysis
http://www.beyondchron.org/news/index.php?itemid=6292
InlandEmpire
Kennard’s lone vote to deny review could spell trouble for opponents of Prop. 8.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/19/BAJC147QAJ.DTL&type=politics&tsp=1
The Gay Numbers
same cite
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/19/BAJC147QAJ.DTL&type=politics&tsp=1
Prop. 8 issues
Issues in the Proposition 8 cases before the state Supreme Court:
— Does Prop. 8 make such a far-reaching change to the California Constitution that it amounts to a constitutional revision, which requires a two-thirds vote of the Legislature to be placed on the ballot?
— Does Prop. 8 violate the constitutional separation of powers by restricting judges’ authority to protect the rights of same-sex couples?
— If Prop. 8 is constitutional, does it invalidate the 18,000 same-sex marriages that took place in California between June 16, when the court’s ruling legalizing gay and lesbian unions took effect, and the Nov. 4 election?
The Gay Numbers
Full quote from one retired law professor:
“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.”
Same cite.
michael
Okay guys,
I just need to inject something vapid and shallow here. The only thing sexier than a guy with six pack abs and nice ass is a guy with
brain. So thanks for the comments and ideas and leaving me hornier than hell.
Martin
My marriage license from California only says Party A & Party B and does not list gender. How can they invalidate the marriage without invalidating all marriages from May till November?
Bruno
@Martin:
With lots of research I guess. Probably will cost the state tons of money. I can’t see them invalidating those marriages anyway.
Ryan
It’s nice to actually see some sanity on these boards. I’ve been fighting the good fight over the the OC Register boards and others. You should see some of the crap people spew out of their holes. If anyone has any extra time, I could use some help on them! =)