The California Supreme Court has agreed to hear the Proposition 8 challeges, and defenses over the course of the next few months. The court issued its order this afternoon, which you can read here. The briefing schedule outlined in the order begins now and goes through January 2009. It is unclear when there might be oral argument and a decision. The Los Angeles Times reports:
REPORTING FROM SAN FRANCISCO — The California Supreme Court agreed today to review legal challenges to Prop. 8, the voter initiative that restored a ban on same-sex marriage, but refused to permit gay weddings to resume pending a ruling.
Meeting in closed session, the state high court asked litigants on both sides for more written arguments and scheduled a hearing for next March. The court also signaled its intention to decide the fate of existing same-sex marriages, asking litigants to argue that question.
The denial of the stay petition is significant, and appropriate. The court needs to show restraint in the face of the clear mandate of California voters on this question, not once, but twice in eight years. This means that no further gay marriages may legally be performed pending the court’s review. Proposition 8 is currently in full force and effect.
Today’s decision to review the lawsuits against Proposition 8 did not reveal how the court was leaning. The court could have dismissed the suits, but both opponents and supporters of Proposition 8 sought review to settle legal questions on a matter of statewide importance.
Some legal challengers also sought an order that would have permitted same-sex couples to marry until the cases were resolved, a position opposed by Atty. Gen. Jerry Brown and Proposition 8 supporters. Only Justice Carlos R. Moreno voted in the private conference to grant such a stay.
Initially I would have preferred the court to dismiss the petitions; but, on more reasoned reflection I agree it is better to have this issue at least argued and fully litigated with an eventual opinion by the high court. I think we know how Justice Carlos R. Moreno is leaning.
The primary legal argument is going to be whether Proposition 8 amounts to a constitutional revision rather than a simple amendment. Case law is sparse on such a legal question in California:
Gay rights advocates argue that the measure was actually a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention.
Lawsuits to overturn the initiative contend it was a revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the constitution by restoring a traditional definition of marriage.
The court’s previous rulings on similar lawsuits have been mixed. The court has upheld at least six initiatives and rejected only two that were challenged as illegal revisions.
The end result depending on the court’s ruling could produce a judicial backlash not seen in California since the 1970′s:
Supporters of Proposition 8 have threatened to mount a recall of any justice who votes to overturn the measure. The court’s members serve 12-year terms and appear on the ballot unopposed in retention elections.
Although the court tends to defer to voter sentiment on initiative challenges, it has overturned popular ballot measures in the past.
I have mixed feelings on such a recall. Ordinarily I would be opposed to such politicization of the court; however, in this case I truly feel the court has usurped its judicial authority and violated the separation of powers between the judicial and legislative branches of government. In short, I feel the court has politicized this issue, given the absolute lack of legal precedent in California for such a sweeping ruling last May, and contrary to most all other reported appellate legal authority around the country.
The Times article noted the court previously overturned a voter approved racial discrimination scheme in the 1960′s:
In 1966, the California Supreme Court struck down an initiative that would have permitted racial discrimination in housing. Voters had approved the measure, a repeal of a fair housing law, by a 2-to-1 margin. Opponents challenged it on equal protection grounds, not as a constitutional revision.
This, however, is not at all the same. Such racial discrimination was and still is contrary to well established federal constitutional theory and case holdings, based on the 14th Amendment to the United States Constitution. States cannot, and certainly voters, cannot vote into law such blatant discrimination. Gay marriage, however, is not even close to racial discrimination. It does not have the same case law precedent, and enjoys no constitutional amendment to the United States Constitution akin to the 14th Amendment.
This will be an interesting constitutional debate. The legal briefs on both sides should be very well done, with some good arguments, and probably even some not so good arguments. If you want to follow the actual briefs posted to the court’s website you can do so here.
Other Coverage:
State Supreme Court to Hear Challenges San Francisco Chronicle
Who Decides, Voters or Judges? San Francisco Chronicle
Supreme Court Takes Up Gay Marriage Appeal Sacramento Bee
Top Court in California Will Review Proposition 8 New York Times
California Supreme Court To Take Up Gay Marriage Ban Washington Post
California High Court Will Hear Appeal CNN
More . . .
November 19, 2008 at 4:34 pm
According to the Sacramento Bee, “oral argument could be held as early as March 2009″.
November 19, 2008 at 4:34 pm
http://www.sacbee.com/749/story/1412194.html
November 19, 2008 at 5:43 pm
Thanks Mark for the Sac. Bee link
November 19, 2008 at 9:46 pm
You are a [edited] bigot if you support Prop 8. You are different that those who existed in the south in the 60′s. The mere fact that your kind exists shows me how little we have become as a society in the past 200 years. You are not an American but a fascist. i hope your church fails!!!
November 19, 2008 at 11:09 pm
Are you telling me the 14th amendment prohibits private parties from racial discrimination in housing? I don’t think so. The 14th amendment is about equal protection under the law, not about equal treatment from individuals.
What’s next…are you going to tell me the 14th amendment prohibits people from discriminating by race in who they marry and date?
November 19, 2008 at 11:47 pm
Skeptic:
Yes.
See Shelly v Kramer, in part:
There are, of course, in CA other protections from such discrimination as well. In fact, the Unruh Civil Rights Act would likewise protect not only racial minorites but also our lesbian and gay sisters and brothers.
November 20, 2008 at 3:58 am
Ah, I see…under this decision the 14th amendment does not prohibit discrimination, but it does prevent enforcement of restrictive covenants that racially discriminate. That is a big difference. Anyone would still be free to discriminate (if not for other statutes), they just couldn’t go to court to force someone else to discriminate.
November 20, 2008 at 5:15 am
I feel the court has politicized this issue
I don’t, but they are elected officials and California’s consitution makes them subject to the whims of popular opinion, so it wouldn’t surprise me if the threat of recall unduly influences any decions they might make in the coming months.
November 20, 2008 at 6:25 am
Peter LLC #8
Regardless of how one feels about the Court’s majority opinion last May striking down the man/woman marriage definition as unconstitutional some things are pretty clear:
1. Prior to May 15, 2008 there was not one California appellate court opinion supporting the creation of a newly protected constitutional class based on sexual orientation.
2. Looking to other state appellate and federal case law for guidance, which would indeed have been appropriate, the CA supreme court would have found several cases specifically holding that sexual orientation was not a constitutionally protected suspect class. From the dissent and footnote 12 in the dissent:
3. The CA constitution says nothing about any fundamental right to same sex marriage.
4. Even the majority in their opinion concede that since the inception of CA’s constitution in the 1800′s marriage has always been understood to be between a man and woman.
5. CA voters voted overwhelmingly in 2000 to enshrine that definition, accepted universally in CA that marriage is between man and woman.
6. On May 15, four justices on the CA supreme court substituted their own moral and political judgment for the express will of millions of CA voters.
That is how the court politicized the decision. Now it has come back to haunt them.
November 20, 2008 at 9:41 am
5. CA voters voted overwhelmingly in 2000 to enshrine that definition, accepted universally in CA that marriage is between man and woman.
Of course, the Prop 8 vote can not be said to have been an “overwhelming” victory for the “yes on 8″ folks.
There are a total of 25,423 voting precincts in California, and about 4.6 million registered voters did not vote in this election (a 73.3% turnout). If the “no” group had worked a little harder at getting out the vote, the “no” voters would have only needed to get 21 more votes in each precinct to carry the day.
November 20, 2008 at 9:49 am
Mark N # 10
Of course the CA constitution does not require such a vote to amend. The fact is that on two occasions within eight years voters have approved the language of this constitutional amendment. The ultimate power of sovereignty and governing rests with the people–not the CA supreme court.
November 20, 2008 at 11:19 am
Of course the CA constitution does not require such a vote to amend.
True, but some people have called into question the wisdom of those who would design things such that the basic, foundational document of the government can be modified by the people so easily as can be done in California. Would we really want to set the threshold so low in the case of the Federal Constitution?
The ultimate power of sovereignty and governing rests with the people–not the CA supreme court….
… provided that, when lawsuits are filed that question the constitutional validity of the new laws, the court doesn’t find that any new laws established by the initiative procedure are so out of harmony with the previously expressed “voice of the people” as embodied by the laws of the existing state constitution that the new laws end up being rejected by the court, which has occurred in the past.
It doesn’t happen often, but it has happened.
In which case, the “ultimate power of sovereignty and governing” can still be exercised by the people since judges, with whom the people disagree, can be voted out of office.
November 21, 2008 at 3:11 pm
Guy, you said that the Unruh Civil Rights Act would cover our gay and lesbian brothers and sisters. The Act applies to all including public agencies. Denying a marriage license to a gay couple seemingly would violate this act.
November 23, 2008 at 9:56 am
[...] California Supreme Court Agrees To Hear Prop. 8 Challenges Messenger and Advocate – November 19, 2008 [...]
November 24, 2008 at 1:52 pm
I was once a Mormon but the church decided it didn’t want me because I refused to stop sleeping with a man that I love. It’s all fine with me. I feel liberated. I didn’t have the church telling me how to live my life. Now again I do. The New York Times said that it was because of the Mormon Church lying in advertising and raising money that Prop 8 passed. Now again the Mormon Church will not stay out of my life, they told me stay out of the church but they can’t leave me alone.
It is a shame that the Church whose members starred in and produced the garbage, lying advertisments. When I was a member of the LDS church I was taught “Love thy neighbor as thyself”, “Judge not lest ye be judged”, and “Thou shalt not lie.” Sure I did things that the church said I shouldn’t do but now I see how hypocritical the Church it. It teaches these things then turns around and does them.
I am thankful that I don’t belong to that church. I still pray to God and know he loves me for who I am, not for who the church wants me to be.
All this crap saying that the institution of marriage would be destroyed is total and complete garbage. Those supporters of 8 say they don’t mind if there are civil unions but that again is crap. If there were true civil unions that gave gays the same rights as hetrosexuals the yes on 8′s would say that because it is the same and called different that it should be illegal too. All this over a word is truely sad. It really doesn’t matter to me what it is called – civil union or marriage – as long as it is equal. People call an athlete a jock and it is the same so who actually cares. It is a word. Let God decide what he will accept. In the mean time people who were pro 8 should really look deep down and admit it was simply hate, discrimination, and bigotry. When you are standing before God and he asks you if you loved your neighbor as yourself you will know and he will know your hypocracy.
Instead of saying yes to H8 you really should say no to H8.
One of my brothers was also gay. No one in the family knew but me. He was married and had five kids. He finally faced the facts and got divorced. When rumors started that he was gay he quickly got remarried. (The pressures of family and church are so great) His wife found out and told him that it was over and he was going to be outed. With that threat and the depression that he had gone through for years because of feeling that he was not equal or loved by God and the church he committed suicide. I almost did the same thing years earlier. I am glad I didn’t. Yes, I blame the church for 1,000′s of suicides. It is plain and simple. I can’t beleive that people feel that all of this ok. Shame on the Mormon Church members (I am not saying all) who make others feel inferior.
December 2, 2008 at 1:58 pm
Latest news:
Legislators push resolution opposing Prop. 8
December 19, 2008 at 5:41 pm
And the push to make Prop 8 retroactive begins:
Prop. 8 sponsors seek to nullify 18K gay marriages
I stated elsewhere that there was nothing in the wording of Prop 8 that would protect the same-sex marriages already performed by the state, and it seems the “Yes on 8″ folks agree.