11/19/2008
California Supreme Court Agrees to Hear Challenge to Prop 8
From the Judicial Council of California:
San Francisco – The California Supreme Court today denied requests to stay the enforcement or implementation of Proposition 8, and at the same time agreed to decide several issues arising out of the passage of Proposition 8. The court’s order, issued in the first three cases that had been filed directly in the state’s highest court challenging the validity of Proposition 8, directed the parties to brief and argue three issues:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?
(3) 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?
MORE AFTER THE JUMP...
Continued, from the Judicial Council's Notice:
The court issued its order in three cases filed on behalf of a variety of parties, including same-sex couples who seek to enter into marriage despite the passage of Proposition 8, a same-sex couple who married in California prior to the adoption of Proposition 8, and a number of cities and counties whose officials seek to issue marriage licenses to same-sex couples. Petitioners in each of these cases seek an order directing the relevant state officials to refrain from implementing, enforcing, or applying Proposition 8.
In response to the petitions, the Attorney General filed a preliminary opposition, in which he urged the court to assume jurisdiction over these cases to decide the important legal issues presented, but also argued that the court should not stay the operation of Proposition 8 pending the court’s resolution of the issues. The proponents of Proposition 8 also responded to the petitions, seeking to intervene as formal parties in the action and also urging the court to accept the cases for decision. The court’s order granted the motion to intervene filed by the proponents of Proposition 8.
In its order, the court established an expedited briefing schedule, under which briefing will be completed in January 2009 and oral argument potentially could be held as early as March 2009.
Six justices — Chief Justice Ronald M. George, Justice Marvin R. Baxter, Justice Kathryn M. Werdegar, Justice Ming W. Chin, Justice Carlos R. Moreno, and Justice Carol A. Corrigan — signed the court’s order, although Justice Moreno indicated that he would grant the requests to stay the operation of Proposition 8 pending the court’s resolution of these matters.
Justice Joyce L. Kennard would deny these petitions without prejudice to the filing in the Supreme Court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.
HERE is the court's order.
Posted 5:04 PM EST by Andy Towle in California, Gay Marriage, News, Proposition 8 | Permalink
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Go California ! It will be one of the most eagerly awaited decisions ever. I will be glued to this site !
Posted by: Hephaistion | Nov 19, 2008 5:12:29 PM
i can't tell if this sounds good for us or not. anyone?
Posted by: goodorno | Nov 19, 2008 5:27:40 PM
Good news.
Posted by: Tony | Nov 19, 2008 5:34:23 PM
yay! finally, some progress.
Posted by: CP | Nov 19, 2008 5:34:25 PM
If my completely un-legal brain is correct, what it means is that they are not overturning it or stopping it from going through *right now*, but they are going to consider whether or not it is unconstitutional, which means they could then stop it from going through if they find it to be so? Or something?
Posted by: Harrison | Nov 19, 2008 5:38:13 PM
I'm taking bets on:
1) No, because there is no marriage clause in the state constitution.
2) No, kinda ridiculous really. There is no basis for this claim.
3) None, prior acts are not annulled under general principles of law. Though, there is some concern that the abolition of slavery annulled the property rights of slave holders based on prior acts, and this could be precedent of the sort to annul the existing marriages. The problem is that these marriages would still be valid in Mass., NY or Conn. Somehow, I think the existing marriages will remain on the books.
I'm a bit amazed this didn't go to superior court first.
What they really should do is raise the bar on amendments to 2/3rd majority voting. Simple majority voting is absurd.
Posted by: anon | Nov 19, 2008 5:38:33 PM
A marriage license is a contract. That contract has been broken by the state of California. I think all 18,000 of us should sue California for breach of contract.
Posted by: Alan D | Nov 19, 2008 5:38:43 PM
Ugh, I should have noted that annulled marriages would not be recognized in other states, but that non-annulled but "unrecognized" marriages would be.
Posted by: anon | Nov 19, 2008 5:41:16 PM
I thought it would have violated the principle of equality under the law, rather than separation of powers. Also the stripping of rights from a class of citizens (those married already) is an arbitrary capricious abuse of voting conventions to deprive a class on religious/sectarian/biblical grounds. To deprive a class of persons of such rights based on sexual orientation is abhorrent to the Constitution and the principles of a nation founded on the proposition that all men are created equal. Nor is it desirable that a class of citizens who possess the right to marry (straights) to deprive other citizens of the equality of the same rights by an oppressive abuse of process.
Posted by: hephaistion | Nov 19, 2008 5:44:31 PM
If they take my marriage away, they then should have to refund all license fees paid to the state. I consider that fair.
Posted by: Steve M | Nov 19, 2008 5:44:59 PM
Does anyone know if there are limits to the arguements that can be reviewed? Is it limited to arguements brought up in the briefs?
I've been seeing a number of posts that look at legal arguements beyond just is this a revision or an amendment.
I'm assuming that the violation of the equal protection clause is a centerpiece of the arguements against the implementation of Prop 8.
Posted by: Rick | Nov 19, 2008 5:47:12 PM
STEVE M - so you're saying it's "fair" to take my rights away provided you give me my fifty bucks back.
Posted by: Dan B | Nov 19, 2008 5:52:33 PM
IANAL, but...
I would think we would win on this, meaning Prop 8 is a revision rather than an amendment. I'm saying that because I read the ruling by CJ George and it is pretty bulletproof... almost looks like he and the other justices thought of this possibility when rendering their original decision.
If they do rule that proposition 8 is valid, then basically they've removed themselves from being able to protect a minority in this state from discrimination. That would be a sad state of affairs... I don't think they will give up that authority to the electorates mob mentality...
Posted by: Mike | Nov 19, 2008 5:52:53 PM
Actually, my hunch is that this is a good thing for the pro-prop 8 people and bad for the anti-prop crowd. The court didn't stay the implementation of Prop 8 (by a vote of 6-1), so gay marriage licenses can't be issued at the moment. Also, the justices are allowing the pro-prop 8 groups to intervene in the case (not unexpected, but it would've been a better sign for the other side if they had denied that request and just stuck with the AG).
Posted by: Justanote | Nov 19, 2008 6:00:45 PM
justanote: I think that maybe there is in law a convention that as the Prop 8 has passed there is a "presumption of constitutionality" until it is overturned; hence the non-stay. Don't be downhearted just yet.
Posted by: Hephaistion | Nov 19, 2008 6:32:19 PM
I wouldn't read anything into the denial of the stay. There are already 18,000 marriages in limbo, and starting up same-sex marriages again would just create more confusion. Instead of a stay, the Court set a very fast briefing schedule, and threw in the retroactivity issue to clean everything up at once.
What bothers me is Kennard's vote. She was the only Justice who voted against taking up this case at all. That probably means she is leaning towards upholding Prop 8. She was part of the four-Justice majority in the Marriage Cases. If she is against us, then the only way we win is to keep the other three Justices from the majority, and also convince one of the Justices who dissented in the Marriage Cases to find that it is unconstitutional for voters to take away a right those same Justices never agreed we had. That seems really unlikely to me.
Posted by: Dr. Pedantic | Nov 19, 2008 6:45:06 PM
To answer several questions about the law:
A) Equal protection under the law is included in the Courts request.
They just do not make it clear.
This question, "(2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?" is probably a discussion of the Court's constitutional role under equal protection analysis.
That's what at stake in the case. The Court already ruled that gays are a suspect class under equal protection analysis. They do not need to rule on that again. They need to decide if their role in making that analysis is trumped by other branches of government action such as the proposition system.
The question they were left with with was whether Proposition 8 violates their role of deciding equal protection cases.
This goes to the heart of whether this is a narrow amendment or one which changes the role of the Court compared to the legislature and voters.
This will be the heart of the case upon which everything else turns. It is hear equal protection analysis will come into play. If they find that it violates their role as the court- I think 8 will be overturned.
B) To rule there is no marriage rights under the California Constitution would require overturning 70 years of case law. This is not going to happen.
C) Out of respect for the voters, the Court probably decided against the stay, but that should not be seen as telling us anything about the outcome. It was probably felt the damage would be minimal which is one of the tests for most stays (assuming the law of California is the same as where I am).
Posted by: The Gay Numbers | Nov 19, 2008 6:49:43 PM
Dr Pendantic
I am not sure one can read it that way. It seems more like she wanted to hear more about impact which would have been more of an issue of trier of fact rather than final court.
To me, her views are found here:
"Justice Kennard would deny these petitions without prejudice to the filing in the Supreme Court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption."
In other words, she wanted more procedural matters to be addressed first because the Court decided without this procedure to take on the issue of already married couples. To me, that reads as a good thing in that she is showing where her sympathies lie.
Posted by: The Gay Numbers | Nov 19, 2008 6:55:41 PM
Here is a site that has pdf's of all the legal documents/challenges to Prop 8
http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
Any lawyers out there that can interpret them for us?
Posted by: Josh | Nov 19, 2008 6:55:59 PM
Man, are the right-wingers gonna flip out when the court overturns Prop 8!
Posted by: Bob | Nov 19, 2008 7:03:34 PM
I read Kennard's vote the exact same way Pedantic does. She's saying that she'd be willing to at least consider taking up the issue of what to do about the already married couples right now if it's just that issue framed in a specific way before her court ("filing in the Supreme Court of an appropriate action to determine Proposition 8's effect). Her vote to both deny cert on the questions presented and deny a stay is quite telling. I think she's leaning towards upholding Proposition 8.
Posted by: justanote | Nov 19, 2008 7:08:51 PM
Another reason for not staying prop 8 is that, if they do rule ing our favor, they need to avoid any appearance of bias. The religious reich likes throwing around the words "judicial activism" enough as it is. Without a stay, fewer people will believe their claims.
Posted by: RainbowPhoenix | Nov 19, 2008 7:15:06 PM
If they uphold Prop 8 there will be rioting in the streets...as well there should be!
Posted by: peterparker | Nov 19, 2008 7:23:33 PM
Well we will find out soon enough. Although as I said- if that were the case, she would have denied those matter of law if she felt that way. I can't see why she would allow them to refile if she were already certain about her position.
Posted by: The Gay Numbers | Nov 19, 2008 7:31:01 PM
Okay- actually now i am not sure. they have changed to wording.
Posted by: The Gay Numbers | Nov 19, 2008 7:41:10 PM