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


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