Prop. 8 Gay Marriage Ban Goes To Supreme Court (Hearing Next Year. Prop. 8 Remains In Effect Alert)

Los Angeles Times ^ | 11/19/2008 | Maura Dolan

[goldstategop]

he 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.

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.

[pollywog]

This is sickening! Why do I even bother to waste gas and vote any more!! GOD HELP OUR COUNTRY!!!!!
We are going to hell in a handbasket!!

[Uncle Miltie]

How can the Cali Supreme Court rule on an issue they caused?

Prop 8 was put in place by the citizens to overturn the Cali Supreme Court particularly.

Isn’t having a hearing on Prop 8 a tremendous conflict of interest?

I mean, the citizens overruled you Supremes.

You can’t seriously and independently rule on the citizens’ overruling of you.

[Vaquero]

I don't see any way they can overturn it now.

but you KNOW they will.

[NinoFan]

It’s important to note that Justice Kennard voted to deny cert in the case AND made note that she would be interested in a challenge that dealt just with question three (what to do with the licenses that were issued prior to its passing).

Justice Kennard was in the majority decision on the gay marriage case. The fact that she specifically noted that she’d be interested in question three only is, I think, a good sign for pro-Prop. 8 position. Not only is she signaling her disinterest in the challenges, but she is also kind of making it clear that her reason for doing so has nothing to do with letting the issue percolate in the lower courts first, because she seems willing to hear argument over what should be done with the previous licenses right now. That suggests that she’ll be a vote to uphold Proposition 8.

[Bush gal in LA]

Wasn't it these same judges who said that prop 8 was a valid ballot initiative and let it go up for a vote in the first place? Remember the gay community tried to keep it off the ballot ,claiming it was a revision not and amendment , BUT THEY LOST? ,,,So how come these same judges are now going to ‘’REVIEW’’ the validity of the proposition. I don't get it!

[ecomcon]

I don't see any way they can overturn it now.

You are transparent... I see many things... I see plans within plans. (Joking)

I believe the court will overturn it. They will make something up, like they always do. Failing that, the voters will overturn it in 2 years time anyway.

[goldstategop]

The Court is now bound by the Constitution and the law they thought they invalidated is now back in force. So they are going to have to come to terms with the fact that if they had stayed their May decision, there would be no "retroactivity" problem. That was of the Court's own making.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

They can only review the procedural question: was it a revision or was it an amendment? If they get past that, they cannot pronounce the very document from which the Court derives its authority and powers, unconstitutional. Thus, if its an amendment, the Court has to accept that its holding in the Marriage Cases was overruled by the voters. And the people in our system of government, are the final judge on what the law means.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

They have to defer to the will of the people. Prop. 22 has just been legitimated by the new constitutional provision which backs it so they are right back where they were in May, when they legalized same sex marriage. The difference now is the Constitution tells them marriage is only between a man and a woman. No other social union or arrangement can be called a marriage.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

Here's more from Volokh:

I think it's good that the California Supreme Court agreed to decide the case, and get it resolved sooner rather than the later. It's important to know what the law is on this, especially given the likelihood that Prop. 8 invalidates same-sex marriages that had been entered into after the earlier court decision but before Prop. 8's enactment. I also think that the California Supreme Court will reject the state constitutional challenges to Prop. 8, and conclude that Prop. 8 amends the state constitution in a way that supersedes the court's interpretation of the preexisting constitutional provisions. (Here's my response to the "unconstitutional revision" argument, but I think the other arguments I've heard about are unlikely to prevail, either.)

Of course, Prop. 8 can't overrule any federal barriers to its enactment. I think there are no such federal barriers, but it's not as clear to me that the California Supreme Court will agree. [UPDATE: After a correction from Rick Hasen, I now think that the California Supreme Court is highly unlikely to reach this question, given the issues that it ordered briefed and argued.] And if the California Supreme Court invalidates Prop. 8 on federal constitutional grounds, for instance on the grounds that it's precluded by the Romer v. Evans decision or that the federal constitution bars discrimination against same-sex marriages, then the issue will be reviewable by the U.S. Supreme Court (and I think the U.S. Supreme Court will indeed agree to review it).

UPDATE: Rick Hasen (Election Law Blog) reports that, contrary to my suggestion, "it does not appear that an argument that the measure violates the federal constitutional guarantee of equal protection is fairly before the court in its review." Reviewing the issues listed in the court's order granting a hearing leads me to think that Rick is likely right.

Rick also says, "It is also noteworthy that the California Supreme Court denied a stay request pending briefing in this case, with only Justice Moreno voting to grant a stay. That is some indication, though not necessarily a very strong one, that the court will vote to uphold Prop. 8 (the reason is that one of the factors in determining the grant of a stay is likelihood of success on the merits)."

It appears likely the Court will uphold it. A stay is usually granted when success is probable on the merits. Which of course, was NOT granted today. Volokh's reading, I think is a persuasive one.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[gitmo]

Are they going to declare the CA Constitution in violation of the CA Constitution?

[Lou Budvis]

A federal court would not have any jurisdiction over a CA Supreme Court decision. The issue involved is a matter of the CA constitution, over which the CA Supreme Court is the final arbiter.

[goldstategop]

Nope. They can only address the procedural issue of Prop. 8's adoption. But they cannot pronounce on the substance since the California Constitution is the highest law of the state and the courts are bound by it.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[Bush gal in LA]

What if they find that it is a ‘’revision’’?

[goldstategop]

IF they do, then it is removed from the California Constitution. Of course if they reach that result, a recall drive will be launched to remove the Justices from office for defying the will of the people.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[Bush gal in LA]

I respect your opinion on this, but I would love to hear what your prediction is on the outcome of all this? You sound like you have a great knowledge of the law!

[rustbucket]

However the people of California want to amend their state constitution is fine with me so long as it does not violate the US Constitution.

I don’t buy the argument that what the voters might have voted for was not valid because somehow it wasn’t really an amendment. That kind of argument could be used to strike down virtually anything the voters approve. IMHO, the voters are the ones in charge of what is in the state constitution and what qualifies as an amendment.

If the California Supremes toss out this voter approved amendment on the grounds that it somehow was not an amendment, they should be Rose Birded.

The problem may ultimately be that some liberal court will create “rights” under the US Constitution that heretofore did not exist.

[unixfox]

We are going to hell in a handbasket!!

Sorry to break the news to you but we have been there for quite some time.

[tuckrdout]

That is my question. The Supremes can only decide if something is constitutional. The PEOPLE just decided that the constitution says that same sex couples can not be legally married. That’s it. Supremes can not change the constitution....only the people can.