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.

[goldstategop]

The California Supreme Court agreed to accept the challenges to Proposition 8 today for review and ordered a hearing next year. Prop. 8 remains in effect and was NOT stayed by the Court.

"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

[scripter]

Thanks for the update.

[B-Chan]

How can a constitutional amendment be unconstitutional? Isn’t the the whole point of these plebescites?

[Lx]

a position opposed by Atty. Gen. Jerry Brown

Did I read that right? Must be running for gov or something.

[Loud Mime]

Pictured en banc in the Supreme Court Courtroom in Sacramento are the court’s seven justices, from left to right: Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan.

Source

[Simmy2.5]

The argument is, whether this is a constitutional amendment (that can be voted on solely by the people) or a revision (that requires a vote by 2/3rd of the California legislature).

Now, given that they didn’t stay the decision gives us some hope. After all, if they had stayed the decision, that would seem to indicate that they automatically agreed to Prop 8 opponents. Now, they have till March 8th to bitch and moan about not getting married.

[Morgana]

so are the filthy disease ridden queers still going to have hissy fits every day because they can’t have a wedding?

[COBOL2Java]

If the Prop 8 opponents lose this round, will it then go to the 9th Circus Court - er, Circuit Court?

[longtermmemmory]

Ok Carlos Moreno is to be targeted no mater the outcome.

[PEACE ENFORCER]

Yes, the homo (haters) will not stop until the “normals” are as upset & angry & as hateful as they are....

[Dan Nunn]

I’m not a lawyer, but this is a state issue. The 9th Circus is a federal court, so no, I don’t believe so.

[SevenofNine]

Okay let see how they rule if not I am wholeheartly and for recall

[rustbucket]

The argument is, whether this is a constitutional amendment (that can be voted on solely by the people) or a revision (that requires a vote by 2/3rd of the California legislature).

I would think that the People of California trump the Supreme Court of California so long as what they passed doesn't violate the US Constitution.

[little jeremiah]

If not good news, at least “okay” news bookmark.

[BlueStateBlues]

They put this off until March, four months for everyone to cool down, or heat up.

[goldstategop]

If its upheld, then same sex marriage is banned in California. The opponents would have to go to the voters to try to get it overturned.

"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

[Simmy2.5]

Since when did the men in black robes care about the people?

Of course, there is an issue here. If this was a constitutional revision, shouldn’t this have been judged on BEFORE the election took place?

In fact, they did decide on it before the election when the ACLU wanted the proposition off the ballot anyways (using the same argument that it is a revision and not an amendment), the court rejected that argument and allowed it on the ballot anyways (but still allowed gay marriages to continue, and, left open a possible court challenge later if it passed).

Apparently they were hoping it would fail. Which it didn’t.

[cartoonistx]

[goldstategop]

Yep. And if it really was a revision, they should have followed the logic of the ACLU's argument last summer and ordered Prop. 8 taken off the ballot for that reason. The Court can't argue now that it was a revision, for by their turning down that ACLU argument then, they implicitly accepted it was an amendment. I don't see any way they can overturn it now.

"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

[YOUGOTIT]

Looks as though the black robed dictators have decided that they could care less what the people say and what the Constitution says and will make the the law on their own. Which is a direct violation of the Supreme Law of the nation.

[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.

[Morgana]

Well maybe we have been too lame. Maybe we have been too easy.

Maybe it is time for us to protest them!

Maybe it is time to burn down their queer bars and bath houses. (after we have seized it by Eminent Domain)

We have been quiet for too long. The only reason those queers are yelling like that is because no one stands up to them. Remember they are in fact QUEERS! They are sissies. Stand up to them, and they will back down in a heartbeat. All you need a group of men, real men and they will know they are done for.

[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.

[b4its2late]

The homosexual mafia is relentless.

[hunter112]

If the Prop 8 opponents lose this round, will it then go to the 9th Circus Court - er, Circuit Court?

The Prop 8 opponents might try to go through the Federal courts (they'd have to go through a lower level court first, before being able to appeal to the 9th), but they'd face an impossible task.

The California Supreme Court has the final say on how to interpret California's laws. It becomes a Federal matter only if there are issues that are in conflict with Federal law or the US Constitution. For example, if there were a provision based on race discrimination that was upheld by the CA Supreme Court, that would raise Federal issues under the 14th Amendment. If the provision in question were based on gender, it would be trickier, since we don't have a Federal ERA, but there are Federal laws that make gender a protected class. There is no decision that makes homosexuality a protected class, just Lawrence v. Texas, which merely prohibits a state from sanctioning private behavior.

Expect the Prop 8 opponents to try based on that case, but expect that even the 9th will have nothing to hang a decision to void Prop 8 with. And if they do, even Tony Kennedy will slap them down for it.

[VlPu]

MISSING LINK
http://illuminati-agenda.blogspot.com/2008/11/missing-link-between-homosexual.html

[Tempest]

Great, so now the pro-gay media will have the oppurtunity to further silence the prop supporters and fabricate a “wave of support” for gay marriage. *sigh*

Orwell was right.

[Zero Sum]

Thanks for the info.

In fact, they did decide on it before the election when the ACLU wanted the proposition off the ballot anyways (using the same argument that it is a revision and not an amendment), the court rejected that argument and allowed it on the ballot anyways (but still allowed gay marriages to continue, and, left open a possible court challenge later if it passed).

So then the question becomes: Since the Cali SC already decided against the legal challenges before the election, why is the issue going to trial again? As you said, perhaps they were simply hoping it would fail. But this second trial seems very similar to double jeopardy.

[reagandemocrat]

Good point.

By creating ‘gay’ marriage last May against the will of Californians, the Supremes have a monster conflict of interest, and should recuse themselves here...

send the issue the the U.S. Supreme Court..and let Roberts, Scalia, Alito, Thomas et al handle this.

RD

[Positive_Phototaxis]

If the Prop 8 opponents lose this round, will it then go to the 9th Circus Court - er, Circuit Court? Gay "marriage" proponents are trying to avoid going the federal rout. They fear that the USSC would rule against them and set a precedent that would set them back decades

[7jmichael]

You know the Bible says God hates the sin and not the sinner. I don’t like their lifestyle but not all are disease ridden. I unfortunately have a cousin who lives next door tha claims to be gay. I pray everyday for her to be turned from this awful decision she has made but I still love her as a family member. It’s hard to be objective when I hate the life she lives but not her. I, for one, don’t call them gay, homosexual or lesbian bur I do call them a name from the Bible which seems to infuriate those that hear it around here. I call them sodomites and it really ticks them off. I live outside of Ashevile,NC and they have moved here and taken over the town so much that I hate to take my boys to town to have them exposed to men kissing men and women groping each other. We need to pray more than ever for our nation and the tolerance it has for these people because the Lord is returning very soon and they need Him now more than ever.

[Positive_Phototaxis]

I agree with you... but what they're saying is that they will rule on whether the process for amending the constitution was correctly followed.

IOW... they can't really say "we overturn the amendment", but they think they can say "you didn't actually amend it". A federal court could (at least in theory) say "that conflicts with the federal constitution and cannot be enforced" (just as if a state constitution banned abortion... it would still be in the constitution, but would be held invalid).

That's worked before, but looks set to fail here. One of the supporters of gay "marriage" on the court wasn't even willing to review the challenge... she only wanted to decide whether existing "marriages" were invalid given the amendment.

[dbz77]

Having read up on this issue extensively, as well as the relevant case law, I would have to conclude that Proposition 8 is indeed a legitimate amendment. Initiative constitutional amendments have been used to legalize Indian gaming, impose legislative term limits, forbid the state from engaging in racial or gender discrimination in employment, and even reinstate the death penalty. The last two are especially relevant. An initiative amendment added Section 31 to the Declaration of Rights, forbidding the state from discriminating against "any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In effect, it was an expansion of the scope of the equal protection clause. If revisions were necessary to affect the equal protection clause, then this section would be invalid and there would be no explicit basis in the state constitution for equal protection in public employment, public education, or public housing. An initiative amendment added Section 27 to the Declaration of Rights, which constitutionalized the death penalty. It was added after the Supreme Court had ruled "that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state." In that same decision, it reiterated that "The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority." It is noted that the cruel and unusual punishment clause applies to all persons subject to California law; the only dispute in questions over cruel and unusual punishment is whether the punishment is cruel or unusual. Section 27 was challenged as an illegitimate revision in People v. Frierson , the Court rejected that challenge. Thus, a fundamental right found in the state constitution's Declaration of Rights was affected by an initiative amendment. The decision Raven v. Deukmejian did invalidate an initiative amendment- but the amendment placed drastic limits on state courts' ability to interpret the rights of criminal defendants, limiting state interpretation of state constitutional protections to the U.S. Supreme Court's interpretation of analogous U.S. constitutional protections. By contrast, Prop. 8 is extremely limited in scope- it only defines one word. State courts continue to have the power to apply equal protection on the basis of sexual preference and orientation, including whether same-sex couples, including those who got "married" before Prop. 8's passing, are constitutionally entitled to tax, inheritance, power-of-attorney, hospital visitation, and other benefits married couples enjoy. They could even rule on whether or not divorce laws apply to same-sex couples- Prop. 8 did not define divorce. And last and certainly not least, state courts can rule on whether or not Prop. 8 is consistent with the U.S. Constitution. To rule Prop. 8 as a revision would effectively state that a revision is required to define marriage, but an amendment is sufficient to define the applicability of cruel and unusual punishment over the death penalty- a life or death issue.