Eyes Turn to California Supreme Court in Proposition 8 Battle


The AP reports that over one–third of California’s legislators filed a friend-of-the-court brief calling on the state’s Supreme Court to overturn Proposition 8 yesterday:

“Forty-four members of the California Legislature filed a friend-of-the-court brief in support one of the three lawsuits seeking to invalidate Proposition 8. The case, brought on behalf of gay couples who have not yet married, argues the ban should be tossed out because voters did not have the authority to make such a dramatic change in state law. The brief argues that the gay marriage ban improperly usurped the state Supreme Court’s duty to protect minority groups from discrimination.”

LatinoactivistsThe Washington Post reports today:

“Three lawsuits, ready since the initiative was green-lighted for the November ballot, have been filed with the California Supreme Court asking it to stop the state from enforcing the proposition until the court has decided on its constitutionality. The suits aim to undo the measure on grounds that, under the equal protection clause in the state’s constitution, a majority of voters are not allowed to revoke equal rights intended for everybody.”

Here’s the gist of what it may come down to:

“‘In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution,’ said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, ‘it fundamentally comes down to whether the court considers this a major change or not a major change.’ Specifically, opponents of Proposition 8 argue that this kind of change is a ‘revision,’ not an ‘amendment.’ The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.”

Attorney Lisa Bloom touched on this in a video I posted yesterday.

JusticesWhen will the Court take up the issue?

“It is not clear when the state’s highest court will take up the issue, but experts say it probably will be soon, given that the legality of 18,000 same-sex marriages hangs in the balance. California Attorney General Edmund G. ‘Jerry’ Brown Jr. said the marriages will remain valid, but legal scholars say that is uncertain. Legal experts say it is hard to predict how the California Supreme Court will view the proposition because there is little case law to guide it. Judges coming up for reelection may balk at going against voters, and the initiative is unlike anything it has dealt with.”

Court spokeswoman Lynn Holton said yesterday that the Court may rule as early as this week.

StaverAnd, big surprise, guess who’s back? The Christian legal group Liberty Counsel, who attempted unsuccessfully to halt same-sex marriages last June.

The SF Chronicle reports: “Three suits filed the day after the election open the door to ‘step-by-step elimination of the people’s right to amend the Constitution by initiative,’ attorneys with Liberty Counsel said Monday in papers submitted on behalf of the Campaign for California Families…Calling the suits ‘patently frivolous,’ Liberty Counsel founder Mathew Staver said in a statement Monday that ‘it makes no sense that four judges can rewrite the historic definition of marriage and more than 5 million people (who voted for Prop. 8) cannot restore it to its common understanding.”

REMINDER: There will be a peaceful demonstration opposing the passage of Proposition 8 outside New York’s Manhattan Mormon Temple on Wednesday evening at 6:30 pm.


  1. Tom S. says

    There’s also a rally this Saturday in Atlanta. You can email me (click my name) if you’d like more information.

  2. Mike says

    This is going to be very interesting what the California Supremes do…. this has now moved way beyond the narrow issue of gay marriage to the larger issue of equal rights to all, and whether or not a simple majority vote can override the equal protection clause. I think the George court isn’t going to allow that to happen without consequences. What I think they will do is say: Fine, you can eliminate marriages for gay folk, but since EVERYONE has to be equal, no one can get married. By doing this, they let the majority amend the constitution and recognize the “will of the people” – but they then show the unintended consequence of people dicking around with the constitution. The majority will then break their collective necks to get a amendment on the ballot to reverse their own decision.

  3. AggieCowboy says

    I would like to see them declare that there is now conflicting language in the state constitution and require the seating of a Constitutional Convention to correct the conflict either by revising the equal rights clauses or eliminating Prop 8. In that way the courts turn it back over to the people and the legislature as to which should be eliminated…Equal Rights for all citizens of California or the definition of marriage.

  4. gr8guyca says

    For a “revision” to be made to the California Constitution, it requires that 2/3 of the Legislature approve it. Since 1/3 have already signed this “friend of the court” brief, it would seem that there are probably not 2/3 who would vote to do so.

  5. AggieCowboy says


    Exactly! There is no way to achieve a 2/3 majority to eliminate equal rights within the state constitution. Prop 8 on the other hand…

  6. Jersey says

    It would be cool if the supremes said that first the equal protections clause had to be overturned and only after that could marriage rights be ammended. Hopefully.

  7. John in CA says

    A constitutional convention is an option. But it is a risky one.

    The GOP might hold the entire process hostage. They might even try to sneak in some language on abortion, school prayer, and all sorts of right-wing “pet projects.”

    If lawmakers don’t agree on a new constitution by a 2/3 majority (and then simply decide to take their marbles and go home), California might not have a constitution for years. This is a real possibility. Democrats have a 50 – 30 seat majority in the State House. And a 26-14 seat majority in the State Senate. This means they’re well short of the 66% needed to approve a new constitution without the Republicans.

  8. The Gay Numbers says

    The only reason why this is not a slamdunk case is the politics. Yes the case law is thin, but the Constitutional role of the court is not. That’s the question they will be addressing with this case. This is a base a conservative assault on the very nature of Constitutional juris.

  9. The Gay Numbers says


    The death penalty case was not a matter of the basic structure of Constitutional interpretation. There was suspect class as gays have been found to be there. This is the part where your analysis breaks down.

  10. tominsf says

    “Judges coming up for reelection may balk at going against voters, and the initiative is unlike anything it has dealt with.”

    Note that the California supreme court justices are appointed by the governor, not elected. As it happens, six of the seven were appointed by Republican governors, and they still voted (4-3) in favor of gay marriage. At least there’s one supreme court in the country that will rise above politics on occasion.

  11. RS says

    Unfortunately, TominSF, that’s only half true. Supreme Court Justices in California are appointed by the Governor. They then go up for a “retention” vote at the next General Election, and then again every 12 years. Voters vote yes or no to keep them, and if they vote no, the Justice is out and the Governor appoints a new replacement. It doesn’t look like any of them are up for a vote any time soon, but that’s just a cursory glance at when they were appointed (looking at Wikipedia) and I could be wrong.

  12. Chris says

    FYI — none of the justices who found a strong right to marriage in CA constituion based on equal protection are up for re-election for at least 8 years…..

  13. Matt in LA says

    Actually, though CA Supreme Court justices are appointed, they must be “retained” by the voters, once at the first general election following their appointment, and then every twelve years thereafter. They can also be recalled through the initiative process. So to some extent they may be influenced by political considerations. That’s one reason why Arnold’s statement and the demonstrations are important: they give the Court political cover.

  14. says

    The death penalty was a matter of fundamental rights- the right to be free from cruel and unusual punishment.

    In California v. Anderson , the state Supreme Court ruled that the death penalty constituted cruel and unusual punishment.

    A voter initiative overturned that.

    In People v. Frierson , the Supreme Court ruled that the initiative was an amendment.

    The initiative overturned the Supreme Court’s interpretation of the cruel and unusual punishment clause.