Prop 8 Plaintiff Refiles Case With California Supreme Court. Huh?!


On March 5, the California Supreme Court heard the case of Strauss v. Horton, a consolidated lawsuit from plaintiffs hoping to invalidate Proposition 8. On May 26, the Court ruled Proposition 8 was valid, though the 18,000 couples who married before its passage would remain married. Ever since, the debate has turned to whether gays should attempt a ballot initiative repeal in 2010 or wait till 2012, or whether to take the case to the U.S. Supreme Court via Ted Olson and David Boies. In the meantime, however, a rehearing petition for Strauss v. Horton was filed without anybody noticing. Huh?

An alert reader tips us off that on Friday, Shannon Minter (the transsexual legal director for San Francisco’s National Center for Lesbian Rights, pictured) from Strauss v. Horton, who faced off against Ken Starr in court, filed a petition [scroll to the bottom] to have the case heard again by the California Supreme Court. We’re not legal experts, so we’re getting up to speed on exactly what this means, but undoubtedly it looks like an attempt to get the justices to hear the case again. (We figure that’s unlikely.) Or maybe it’s part of a larger strategy.

We’ve reached out to Minter for clarification.

UPDATE: NCLR responds with this statement, explaining they are not asking for a re-hearing of the Prop 8 case: “NCLR and our co counsel (Lambda Legal, the ACLU, Munger, Tolles & Olson LLP, and David Codell) filed a petition for rehearing for the limited purpose of asking the court to correct a factual error in the opinion. The document must be titled petition for rehearing because that is the only procedural vehicle for requesting any modification, but we are simply asking the Court to correct a factual error, not to rehear the entire case. The current decision states that the racially discriminatory initiative amendment that was challenged on federal grounds in Mulkey v. Reitman was never challenged on the alternative ground that it was an unlawful amendment (i.e., the same ground upon which we challenged Prop 8). In fact, however, that initiative amendment was challenged on that basis in a companion lawsuit, so we have asked the Court to correct that error. That is important because the distinction between an amendment and a revision will continue to be an important issue under California law, and we do not want future courts to be misled by that factual error.”