California Supreme Court to decide fate of Prop. 8 same-sex marriage ban
By Howard Mintz


Mercury News
Posted: 11/19/2008 02:08:02 PM PST

The California Supreme Court moved swiftly Wednesday to tackle the latest legal showdown over gay marriage, agreeing to consider three lawsuits that challenge the legality of Proposition 8's abolition of same-sex weddings.

At the same time, the state's high court rejected a bid to put Proposition 8 on hold while the legal struggle unfolds, postponing indefinitely any new wedding vows for gay and lesbian couples. The Supreme Court indicated it is likely to rule by June.

The justices' two-page order sets the stage for another historic courtroom collision that may decide whether same-sex couples can resume marrying in California, as well as determine the legal status of thousands of gay and lesbian couples who

Even though the lawsuits did not address the validity of existing gay marriages, the Supreme Court made a point of asking all sides to offer arguments on the question, suggesting they do not want to leave any legal uncertainties when the case is decided.

Couples who have either married or are hoping to marry greeted Wednesday's news with apprehension and cautious optimism the Supreme Court may preserve their rights.

For Lisa Miller and Paula Jabloner of San Jose, news that the Supreme Court would reconsider the validity of their marriage, four days before Proposition 8 passed, was disquieting.

"It would just be a shame for that to be taken away," Miller said.

But Jamie McLeod, a Santa Clara City Council member who hopes to marry partner Vanessa Cooper, was "delighted" the Supreme Court may give her the chance.

"The polls looked like it was going to be close, but I thought we'd be OK," McLeod said of waiting until after the election. "We didn't take the time to say, 'Hey, if this passes we may lose this opportunity.' "

Meeting in private at their weekly conference, the justices voted to review arguments that the same-sex marriage ban was an improper method of amending the California Constitution and interferes with the ability of the judiciary to protect minority rights. The same Supreme Court narrowly struck down California's prior ban on gay marriage in a ruling this spring, but Proposition 8 trumped that decision.

Randy Thomasson, a leading gay marriage opponent, warned that the seven justices — six of them Republican appointees will confront a "voter revolt" if they overturn Proposition 8. Gay marriage foes have warned that they might mount a recall campaign against justices who vote to strike down another ban on same-sex marriage, rekindling memories of a 1986 voter backlash over the death penalty that removed three justices from the court — that time in a retention

But for the most part, all sides indicated Wednesday they are prepared for the court to settle the matter.

"We're very happy they took the case and are going to resolve these issues quickly,'' said Anthony Pugno, Proposition 8's lead attorney.

Lawyers for a host of civil rights groups, same-sex couples and local governments, led by San Francisco and Santa Clara County, also expressed relief the court agreed to consider their lawsuits. Santa Clara County Counsel Ann Ravel said it was critical to protect the equal protection rights of gay couples.

Attorney General Jerry Brown, who earlier this week opposed a stay because it would generate too much legal confusion, has not taken a position on the legal challenges, but did urge the justices to accept the cases to give the state "finality.'' Gov. Arnold Schwarzenegger has stated publicly that he believes the Supreme Court will again strike down the gay marriage ban.

In the meantime, legal experts are divided over the likely outcome — although most do not believe the court would void the existing same-sex marriages because of precedents that frown on taking away existing rights. The central question in the case is whether a change to the state constitution that removes a legal right for a minority group is so dramatic that it must first be considered by the Legislature before it can be put before the voters.

Gay rights advocates argue that a ballot measure cannot be used to strip away the constitutional rights established in May's Supreme Court ruling. In a technical argument with sweeping ramifications, they contend the gay marriage ban amounted to a revision to the existing state constitution, requiring a two-thirds majority of the Legislature — or a state constitutional convention — to the get the issue on the ballot.

But Proposition 8 supporters insist the measure was a basic amendment to the constitution that could be put on the ballot through a common petition drive. In court briefs, they argue voters have a firm right to amend the state constitution, saying the Supreme Court's May ruling simply trampled on past decisions by voters to outlaw gay marriage. They also point to past voter-backed constitutional amendments upheld in the courts, including California's death penalty law and Proposition 13's overhaul of the property tax system.

Some conservative legal scholars say the Supreme Court has "no lawful authority" to upend the voters on the subject. But a string of prominent law professors have sided with gay rights advocates, including Harvard law Professor Laurence Tribe and Christopher Edley Jr., dean of Boalt Hall School of Law.

"Unlike other cases, this is a case where for the first time people have voted to single out one group of individuals entitled to the highest level of constitutional protection and taken away civil rights,'' said Donna Ryu, a Hastings College of the Law professor. "It eviscerates the equal protection clause.''

Screw Kalifornia

The people have spoken. Yet the supreme court doesn't give a fuck what the people think. I hate our retarded judicial system sometimes

This is the problem with Republics.

yep the Supreme Court of Cali fornia will say Fuck you voiters!




Any chance this goes before SCOTUS one way or the other?

So if the people vote to take away your 2nd amendment rights, but it's protested as unconstitutional and taken up by the supreme court would you still hate said judicial system?

There is a difference between the federal and Calif state supreme courts. The state supreme court judges are elected, and not appointed like its federal counterparts. If they void the law, the state supreme court judges can be "un-elected." Remember what happened to Rose Bird who kept on void death penalty laws? The liberals and news media were highly disappointed when her court was "un-elected."

Lets hope Kalifornica wakes up and gives the aholes in their Supreme court the boot.

The homos wouldn't dare try it. They know they would lose and that's not the place you want to lose.

Heh.... so the Supreme Court is going to tell the people of California that voted "yes" to go fuck themselves and that they really have no say? LOL. What a joke.

How can it be legally challenged? If they can get away with this shit, than we should be able to overturn the Obama election.

Much as I disagree with prop 8, they did amend their Constitution to do it, as is their right.

I don't see how the California Supreme Court can overrule a Constitutional amendment.  

And even if they did, I can't imagine the Federal supreme court not overruling the State supreme court.  Marriage laws are clearly a State issue, aren't they?

So if the people vote to pass a constitutional amendment repealing the second amendment, and it passes, do you think that the court should invalidate it?

Wasn't prop 8 a vote amending the CA constitution?

Yep.  Repealing the Second Amendment would take ratification by 3/4 of the States.  Not bloody likely.

Regardless of whether or not it's likely, if we claim to support the constitution then I don't see how we can argue against amending the constitution using the built-in mechanism for such.

I can clearly read in the constitution where it says "right to keep and bear arms".

I really can't find about letting gay people get married....

I think that's the problem with letting a judge decide instead of citizens.

It's not a constitutional issue at all.

And you fail at your understanding of the Constitution/BoR. The rights enumerated in the BoR is not a definitive list of rights possessed by the people. Its a list of restrictions on the federal government.

What they're arguing is that this state constitutional amendment violates the Equal Protection clause of the 14th amendment to the US Constitution.

However, they would be wrong.  The issue isn't whether or not gays can get married.  Its whether same sex couples can marry eachother.    And if the State passes a constitutional amendment to ban same-sex marriage, I would think that the equal protection clause was not violated, so long as that law was applied equally.

It would be akin to someone suing that a state ban on polygamy violated the equal protection clause of the 14th amendment.

Personally, I don't care if people practice same-sex marriage OR polygamy.

Don't wish too hard to get what you want.  The only thing keeping the gun banners from wishing our guns away is the Judicial System.  If you don't think the majority of Americans would vote to ban most or all guns, you are sadly mistaken.

After Prop 8 passed, local NPR stations analyzed the options and said that the opposition had essentially zero chance of changing the law.

Skip ahead (what 2 weeks??) and it's already going before the state supreme court.

Shady shit.....

At least we won't have Al Franken as a US Senator.

Gay marriage is in the constitution?

I understand your point but I think your analogy is a little off.

Isn't that kinda like saying a ban on mixed marriages doesn't violate the equal protection clause?

I really don't know or care about this, but I do believe there are many many things that are beyond the purvue of the democratic process, as another poster said, that's what makes us a republic.

Good point.  Are there even any "miscegenation" laws left on the books anywhere?  Have they ever been challenged in court?  

It'd be interesting to see what the result was.

9th amendment makes all rights equal.

Its not hard to understand.  The people of CA have voted REPEATEDLY to not allow gays to marry.  Money and political pressure are the only things driving this gay marriage sham.  I dont see how a court can overturn this legally because it is an amendment to the Constitution.  If it happens that some judges legislate from the bench again, those mofos need to be strung up from the nearest pole.  I'm tired of tax dollars being blown on court cases where the will of the state is clear.  Separation of church and state goes both ways.  This all started because some asshole judge decided to be a one man congress and opened a can of worms.

I have spent too long in a state where that debauchery is flagrantly flaunted.  I dont think you want me to get into the shit you see in one of these gay pride parades.  Suffice to say if I did some of that in public with a woman, I would be arrested and probably end up on the sex offender registration.  I damn sure wouldnt want my kids to see it either.  I only ask for equality.  As it stands now, gays already have civil unions that offer the same benefits as married couples.  Because of that I see all of this as an attack on the Christian beliefs.

BS. they've done it time and again.

see civil unions and separation of church and state

That is EXACTLY MY POINT. How can this vote be unconstitutional?

You haven't taken the right classes yet.  This is going to SCOTUS and quickly.  Like it or not, you have some states allowing "gay" marriage and others refusing to allow it or recognize it from other states, that's a high speed trip to Washington.

Go Back and read the 1st (incorporated to the states), 9th and 14th Amendments.  It includes elements of religious freedom, due process rights, equal protection rights

First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Prop 8 denies the right of churches to allow 2 members to marry, as many here will tell you Marriage is a Sacrament, the government can NOT tell a Church what it can or can't do as a free exercise of it's religious practices, especially when those practices are being exercised by legally competent adults.

Bringing suit in a court of competent jurisdiction is a constitutional method of petitioning a redress of grievances.

9th Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The argument is that the Government can NOT deny them the right to marry or enter into a marriage contract while recognizing that right for other legally competent adults.

14th Amendment  1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If marriage is NOT a right, it is almost certainly a privilege, and the making of a contract, may be both or either, (sub judice), and denying any legally competent adult the ability to enter a simple contract is clearly a denial of equal protection.

It's almost a sure win for them.

BTW anybody thinking that Governor Moonbeam, the current CA AG is going to fight hard to defend Prop 8 is dreaming.

You mean like Prop 187?

As others have pointed out, the state issues a marriage licenses. Since the state is issuing it, I would believe that would fall under the equal protection clause. If this was a church simply marrying two people, then they would have the right to refuse to perform the marriage for anyone they see fit. However, when you involve the .gov into the mix, you then have to play by the rules set forth.

My opinion on the matter is to take the .gov out of marriages all together.

Forbids churches from allowing their gay members to participate in the Sacrament of Holy Matrimony.  That's unconstitutional.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

The current law (the one being overturned by the Prop 8) does not force any church or person to change it's doctrine or dogma, it does not force any church to perform marriages it does not want to.  The precedent of that right of churches to pick and chose what sacraments they allow their members is clearly apparent in the right of the Roman Catholic Church to refuse to administer any of it's Sacraments to non-members, the Mormon Church to not allow non-members in it's sacred rooms, etc etc etc.  You are still more than able to find any or all of any churches rites icky and yucky.  But YOU can't impose your religious views on anybody, and neither can the State.

Prop 8 forbids the free exercise of religions by forbidding some churches from voluntarily allowing their gay members to marry in their church.  that's that little "prohibiting the free exercise thereof" technicality.

And prohibiting somebody from entering into a marriage contract based on their gender is  a due process and equal protection violation.

Didn't Prop 8 amend the California constitution?  They don't really have any choice but to affirm it then.

This is going to go to Federal Court (assuming the State Supreme Court doesn't overturn it again.), just like 187 did.  The conflicts between the state laws and full faith and credit conflicts almost guarantee it.

Remember these were Reagan appointees that overturned it last time.  I doubt they are going to find much difference this time.  If they don't overturn it, the suits in Federal Courts will follow immediately.

As far as recalling the Judges or voting them out, look how long it took to get Rose Bird and her court finally out of the system.

If they were simple contracts between individuals, then they probably would remain a States issue.  Unfortunately, you now have some glaring conflicts between state laws, and also some full faith and credit clause conflicts.

Say a straight couple get married in MA or CT (or any state that has Gay Marriage), they move to CA, no problem.  Say a gay couple gets married in MA, and they end up visiting or moving to CA. Prop 8 says that marriage is not recognized in CA, what then, how about if one partner gets killed in an accident, does the surviving partner inherit like a straight couple?  how about if one gets injured, who then becomes next-of-kin for making medical decisions?  Could they get divorced here?

Even without any of the various religious implications the contractual implications along with equal protection and due process are going to send it very quickly to the Federal system.

Unfortunately, a strictly State Supreme Court decision, either way leaves most of the legal questions unanswered.  Say the CA State Supreme Court overturns it again.  Then use the examples above again.  Say the gay married couple are from CA and they go on vacation to ski in Utah, what happens if one is hurt or killed, who is next of kin?  is their Will recognized
etc etc

So in reality any CA decision is only a station stop on the express train to SCOTUS.