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.

[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.

[No Dems 2004]

An interesting factor in here is that Justice Kennard who was one of the 4 who supported gay marriages wanted to reject the hearing altogether. Sounds to me as if this one might not go the way of the fruits.

[reagandemocrat]

She wanted to reject the hearing, without prejudice to filing another petition that would include ‘gay marriages’ performed after the Court’s May decision.

The engineer is about to be hoisted by his own petard.

[PEACE ENFORCER]

I love the Idea of burning down the structure, only thing I would add is to make sure their in it! lol :)

[Gay State Conservative]

The court also signaled its intention to decide the fate of existing same-sex marriages....

I'm no legal scholar but doesn't the US Constitution prohibit ex post facto laws? If that's true then there's no was you can invalidate,within the state of California,"marriages" that occurred between the time when they were declared legal by the CA Supreme Court and the day that Prop 8 passed.

[Gay State Conservative]

A federal court would not have any jurisdiction over a CA Supreme Court decision.

If said court believed that a right granted by the US Constitution was violated by Prop 8 then it could claim jurisdiction.You just *know* that if the pervs lose the case in the California courts they're gonna try to take it Federal.And they'd probably win the first round given that it's the 9th Circus.and depending on how many judges Hussein gets to put on the SCOTUS...and when....the pervs just might pull this off.

[oregano]

Is voting a civil right?

Did you know that if you are a conservative in California your vote doesn’t count? The decision will go back to the(California) supreme court where it will be overruled by the grim reapers.

[tuckrdout]

Really. Thank you for clearing that up for me. I am not as sure as you are, that they won’t say that the process was flawed. They will most certainly throw it out. They already ruled that same sex marriage HAD to be allowed.

Soon, these homosexual groups will have things turned around so much that they will demand that everyone have at least one homosexual experience!

[Hoodat]

I'm no legal scholar but doesn't the US Constitution prohibit ex post facto laws? If that's true then there's no was you can invalidate,within the state of California,"marriages" that occurred between the time when they were declared legal by the CA Supreme Court and the day that Prop 8 passed.

This isn't a matter of ex post facto application. The state will not be criminalizing a same-sex marriage that occurred before the amendment passed. It only says that such a marriage will not be recognized by the state.

It works the same as passage of Amendment XIII abolishing slavery. Just because someone happened to be a slave at the time that amendment was ratified does not mean that person remained a slave.