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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Yes, it will be interesting. There's always the possibility that she'll change her mind, too. I just find it odd for her to note her interest in only one area (and that she'd be willing to consider taking up that issue right now) and at the same time denyint cert on the important questions. I would think that if she were a strong vote against Prop. 8 that she would just grant cert, because the debate over what to do with the licenses is irrelevant and a waste of the california court system's time if the court just plans on striking down the proposition.
Posted by: justanote | Nov 19, 2008 7:42:22 PM
I beg to differ on the negative opinions of Kennard's vote.
I think the issue of deciding on the constitutionality of the existing marriages immediately is the best avenue to argue against of Proposition 8:
Does a "Majority" (and a slight one at that-and one created by the undue influence of an organization with great religious bias to the suspect class) have the constitutional right to invalidate the marriages of 18,000 citizens- that the court has said in their prior ruling have a constitutional right to marry. If this is so, the court would have to back-track on their prior ruling.
I think she is taking a judiciously logical approach to overturning Proposition 8.
Posted by: Godfrey | Nov 19, 2008 7:58:47 PM
That's true. But the votes of the justices overall are now that I think about it odd. Are the former no votes betting she will turn against the majority in the prior ruling? Otherwise, why not just side with her in order to limit the bigger question? Or do they want to invalidate both the old marriages as well as any new ones? That maybe the motivator, but how can they be sure she will side with them? If the other yes justices were certain of her vote why not limit the damage by denying cert for the broader question and at least save the prior marriages? I am not sure what to think. We shall see.
Posted by: The Gay Numbers | Nov 19, 2008 8:01:14 PM
I think some of you are reading in too much of Justice Kennard's rejection. I think it is mainly procedural - it was done without prejudice, which means that she simply wants more work done before it comes up to the supremes. If you want what she believes, read her powerful concurrence in the re: Married cases decision. As I said earlier, that decision was bulletproof... I find it hard to believe that they will let the wingnuts do an end run, esp. in light of what she previously stated. Here is part of what she wrote:
In holding today that the right to marry guaranteed by the state Constitution may not be withheld from anyone on the ground of sexual orientation, this court discharges its gravest and most important responsibility under our constitutional form of government. There is a reason why the words “Equal Justice Under Law” are inscribed above the entrance to the courthouse of the United States Supreme Court.Both the federal and the state Constitutions guarantee to all the “equal protection of the laws” (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7), and it is the particular responsibility of the judiciary to enforce those guarantees. The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.
Posted by: Mike | Nov 19, 2008 8:07:13 PM
"As I said earlier, that decision was bulletproof"
Well, I assume that you would concede that it isn't actually bulletproof. For example, if this had been a referendum instead of an amendment, surely you wouldn't suggest that she'd ignore even that.
Now, if you're suggesting that she's open to striking it down as a violation of the FEDERAL constitution (14th Amendment, for example), then I could see that. Of course, in that case, it would be reviewable by the United States Supreme Court, and I doubt that many gay activists want that to happen anytime soon.
Posted by: justanote | Nov 19, 2008 8:15:41 PM
per CNN:
In its May 15 ruling legalizing gay marriage in California, the justices seemed to signal that a ballot initiative like Proposition 8 might not be enough to change the underlying constitutional issues of the case in the court's eyes.
The ruling said the right to marry is among a set of basic human rights "so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process."
Posted by: Jose | Nov 19, 2008 8:17:08 PM
One other point...I would bet that this will be a unanimous decision - which ever way it comes down - and again I bet they will side for equality - one way or another. What I mean by that is they will either throw it procedurally - by saying it need to go thru the revision channel if the people still want it... or they will say, fine, it's valid - gay's can't marry - but since we've ruled that gay's must be treated equally, NO ONE can marry. Either way would be fine by me. The reason I think it will be unanimous is that it is already settled law that gay folk are a suspect class. So that will be the starting point for their decision.
Posted by: Mike | Nov 19, 2008 8:17:40 PM
"r they will say, fine, it's valid - gay's can't marry - but since we've ruled that gay's must be treated equally, NO ONE can marry. "
That is not happening. The voters would unseat the justices in a heartbeat if they ruled that way and the justices know it.
Posted by: justanote | Nov 19, 2008 8:20:20 PM
I have to say, I'm kind of enjoying the discussion here. Justanote, I think we're pretty much on the same page.
Mike, I have to disagree with you. What Kennard said was that her denial of the petitions seeking review of the Constitutionality of Prop 8 (one issue) was without prejudice to a new petition as to retroactivity (a different issue). In other words, she said she didn't believe the Supreme Court should grant review of the Constitutionality, but she did believe the Court should immediately review whether Prop 8 is retroactive.
So my reading of this (as a lawyer, but hardly an expert on the California Constitution) is that she doesn't think the petitioners have a solid basis for their arguments. This isn't a matter of denying the petition on procedural grounds and telling folks to come up through the ranks, starting in the lower courts and working through the appellate system. By saying she would be willing to consider the retroactivity issue, she's demonstrating her agreement that there is original jurisdiction in the Supreme Court with regard to at least one Prop 8 related issue. So I see her wanting to deny the petition as one on substantive grounds (the arguments have not merit) rather than on procedural grounds (litigate it through the lower courts and we'll see you later).
Remember that the other six Justices, including those who dissented in the Marriage Cases, all agreed that the Court should review the Constitutionality of Prop 8. All of the parties argued that as well. So Justice Kennard's disagreement with everyone else involved sends a pretty strong signal that she thinks the Constitutional claims have no merit.
Sorry to be so gloom and doom, but I just can't spin Justice Kennard's vote any other way.
Posted by: Dr. Pedantic | Nov 19, 2008 8:32:32 PM
Well, despite the hyperbole Mike does make some rather good points.
I would add that these same Justices were asked to hold off their ruling in May until the outcome of Proposition 8 were known.
The justice in question was one of those who felt like she did not need to wait. She made her decision knowing full well the potential Constitutional conflict that would follow.
This is why the early language by her is critical to how pessimistic we should be over her procedural decisions today.
Mike and Jose are also right about the fact that one can virtually cut and paste the quesstions the Justices want our side to answer from the In Re Marriage decision.
Again- she signed off on it the overall ruling. That puts me a back into the I don't think it means much column.
Posted by: The Gay Numbers | Nov 19, 2008 8:44:27 PM
"The ruling said the right to marry is among a set of basic human rights "so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.""
Well, yes, not through the statutory initiative process, but whether it's valid if done through the amendment process is an entirely different question.
Posted by: justanote | Nov 19, 2008 8:46:34 PM
I don't think your gloom and doom is valid Dr Pedantic given her prior ruling and given the fact that if this were her thought process- I don't see why those who wanted yes would still push forward with the case. As a practical matter, the issue would have been settled with today if there were certainty about her view on the larger issue.
Posted by: The Gay Numbers | Nov 19, 2008 8:47:00 PM
It would be bizare for them to argue that sort of technicality Justanote on such a far ranging issue.
Posted by: The Gay Numbers | Nov 19, 2008 8:48:48 PM
Actually, there is one more spin I could put on Justice Kennard's vote. In granting review, the Court asked for briefing on an issue that the petitions did not ask the Court to address: retroactivity. Justice Kennard could have just been saying that if the Court wants to grant review that includes the retroactivity issue, then that issue should have been raised in a petition that expressly asked the Court to rule on retroactivity.
I don't think that's what is going on here, but it's definitely a possibility.
Posted by: Dr. Pedantic | Nov 19, 2008 8:49:51 PM
The question is whether she views the statutory initiative and amendment initiative processes as being fundamentally different, and it's quite possible that she does. I'm not sure we can copy/paste on that one, but yes, I concede that if she views the two as being the same (and we'll probably know early on during oral argument if that's the case), then her vote is not in doubt.
Her weird vote in the cert stage still makes me lean towards a vote to uphold though.
Posted by: justanote | Nov 19, 2008 8:53:46 PM
Pedantic,
That is a possibility, but what a strange way to word it if that's the case. I do wish she would've been clear.
Oh, and I'm not trying to be pessimistic, just realistic. It's quite possible that Prop 8 won't get overturned. All it will take is for one justice in the majority to decide that it is a valid amendment and that's that.
Posted by: justanote | Nov 19, 2008 8:58:17 PM
So this is my thinking. I think that the CA Supreme Court will overturn Prop 8 because they've already said that the electorate CANNOT vote on this issue:
From Page 6 of the May 15, 2008 decision:
"Under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
The key phrase here "...may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
Any thoughts on this?
Posted by: philster | Nov 19, 2008 8:59:16 PM
I am going to vote to fire the justices in 2010 anyways. I do not have confidence in them and we will likely get more liberal justices if they get fired.
Posted by: Matt from California | Nov 19, 2008 9:17:16 PM
Philster, I think the key phrase is the one that includes "under this state's Constitution" and "the constitutionally based right to marry." If the Constitution has been validly amended to exclude gays and lesbians from the right to marry, the rest of the analysis is irrelevant.
Justanote mentions the difference between "pessimistic" and "realistic." In this case, I think pessimism and realism converge.
Posted by: Dr. Pedantic | Nov 19, 2008 9:18:55 PM
My chief issue with Pedantic's post (and I m a a lawyer by training too) is that I can not imagine a Justice of a state Supreme Court signing off on such sweeping language as In Re Marriage over a technicality. Essentially you are saying she signed off on what Philster and others describe here knowing full well that a few months later she could be put in a position to overturn the language of the prior ruling. That she would do this in the face of the court being asked to hold off on making a decision until after Propositin 8 was voted on by the electorate. If it were all just the technical issue of statute versus amendment to the Constitution, it would seem to fly in the face of judicial restraint to make such a sweeping decision over a technical issue that would be remedied a few months later.
Posted by: akaison | Nov 19, 2008 9:19:46 PM
Needless to say- I think realism here is to admit we don't know what her actions today mean. That taken in context its hard to make the argument you are making Pedantic.
Posted by: akaison | Nov 19, 2008 9:22:53 PM
PHILSTER, as has been pointed out, this was not a statutory initiative, it is an amendment. While that phrase is definately a plus for our case, it can't be used to accurately judge what the court will do.
Posted by: RainbowPhoenix | Nov 19, 2008 9:24:31 PM
What other point. If the goal was to remedy a procedural issue rather than make a broader claim- this not the narrow way in which courts tend to do these things.
Posted by: akaison | Nov 19, 2008 9:28:10 PM
Philster,
I think this would be the most prudent approach for the justices, given their strong opinions pro marriage expressed in their prior ruling. Although the case history is somewhat different, it is sufficiently similar to issues governing the Mass. decision in Goodridge vs Department of Public.
Posted by: Godfrey | Nov 19, 2008 9:29:17 PM
I think a lot of people are making a mountain out of mole hill concerning Kennard's dissent. What she was saying is that the only case which the court should be addressing, at this moment in time, is that of those people who were validly married prior to the Prop's passage to determine what effect its passage has on their status as a married couple. The other cases which have been filed, according to the Judicial Council's Notice, are from litigants essentially asking the court for a prospective and/or advisory opinion without stating that they have been harmed -- which is not the role of the supreme court of any state. For someone to have standing before the court, they would have to make the attempt to be married, have their application denied and then file their claim in the appropriate court of original jurisdiction, not the supreme court of the state.
All I can see that she is doing is following certain standards of jurisprudence -- I don't see it as some statement about her possible stance on the merits of the decision.
Posted by: jojobean873 | Nov 19, 2008 9:43:30 PM