Calif. Supreme Court Could Strike Down Prop 8

NBC11 ^ | Tue, Feb 3, 2009

[nickcarraway]

The California Supreme Court announced Tuesday it will hear arguments on the constitutionality of Proposition 8, the state's ban on same-sex marriage, in San Francisco on March 5.

The high court's written ruling on whether the voter initiative should be struck down will be due 90 days later.

The measure, enacted by voters on Nov. 4, amended the state Constitution to provide that "only marriage between a man and a woman is valid or recognized in California."

It overturned a decision in which the court said by a 4-3 vote in May that gay and lesbian couples have a constitutional right to marry.

The panel is now considering three lawsuits filed by same-sex couples and a coalition of cities and counties to challenge the ban.

The lawsuits claim the measure is so sweeping it is a constitutional revision, which would require approval of two-thirds of the Legislature as well as a majority of voters.

The court has said it will rule on both whether Proposition 8 is constitutional and, if so, whether it retroactively invalidates the estimated 18,000 same-sex marriages performed in California before Nov. 4.

The justices in today's order allocated an unusual three hours for the arguments in their State Building courtroom beginning at 9 a.m. on March 5. Cases are normally allotted only half an hour per side.

Lawyers for each set of plaintiffs will each get 30 minutes. The plaintiff groups are six same-sex couples and a civil rights organization, Equality California; a seventh couple that filed a separate lawsuit; and 15 cities and counties led by the cities of San Francisco and Los Angeles and Santa Clara County.

The proponents of Proposition 8, represented by Pepperdine Law School Dean Kenneth Starr and Sacramento attorney Andrew Pugno, will have an hour to argue to the court.

Starr and Pugno had asked for extra time because their clients are the only party in the case fully defending Proposition 8.

In a surprise move, California Attorney General Jerry Brown, whose job is to defend the state's constitution and laws, in December submitted arguments both for and against the measure and concluded that the court should strike it down.

Brown told the court in a filing that he doesn't think that Proposition 8 is a constitutional revision or that it violates the constitutional separate of powers. But he said he believes it is unconstitutional because it violates the inalienable right to liberty.

The court gave Brown 30 minutes, but instructed him to "divide his time between his arguments in support of, and his argument in opposition to, the validity of Proposition 8."

Groups that filed friend-of-the-court briefs will not be given time to argue unless one of the official parties in the case agrees to give up part of its time.

At least 63 friend-of-the-court briefs were filed by individuals and coalitions of groups, some representing dozens of other organizations, including religious groups, law professors, business groups, labor organizations and civil rights groups.

Twenty of the friend-of-the-court briefs supported Proposition 8, while 43 favored striking it down.

Kate Kendell, legal director of the San Francisco-based National Center for Lesbian Rights, which filed the first lawsuit on behalf of same-sex couples, said, "Proposition 8 represents a tremendous threat to the rights of every minority group in California."

Related Stories One Trip to Vegas that Didn't Stay Secret Paycheck Strings Attached to Bailout? Bravo Kicks Off Nationwide Casting Call For Season 6 Of ‘Top Chef’ Kendell said, "As our legal team prepares for oral argument before the California Supreme Court, we are hopeful that the court will end the short life of this draconian measure."

Pugno and Starr have argued in court filings that Proposition 8 represents the will of the people and is well within the initiative power.

They wrote in their final brief last month, "Proposition 8 is a moderate measure that represents a deeply rooted, multigenerational judgment of the people of California about the definition of marriage."

[CounterCounterCulture]

Doesn’t matter now, does it? He’s reportedly leading in fundraising for his upcoming race for governor. Coincidence? I think not. He’s being rewarded now for his actions of making a constitutional amendment unconstitutional.

[nathanbedford]

So the California Supremes claim for themselves not only the power to declare what is constitutional but what may be constitutional.

Slippery slope indeed!

One wonders whether they will invoke a clause of the California Constitution to frustrate the amendment process of the California Constitution or whether they will look to the Federal Constitution to achieve their preconceived objective.

[eyedigress]

Constitutions regard the limits of the government. All else goes to the people. Preach on!

[Nextrush]

If the judges rule against Prop 8 it is the establishent of tyranny.

A few hundred thousand bodies in the vicinity of these judges may make an impressive statement.

People need to stand up and say NO to tyranny.

[L.N. Smithee]

Brown told the court in a filing that he doesn't think that Proposition 8 is a constitutional revision or that it violates the constitutional separate of powers. But he said he believes it is unconstitutional because it violates the inalienable right to liberty.

Moonbeam Brown knew exactly what it was when the Gay-stapo demanded that he change the language the title from “California Limits to Marriage Amendment” to “Elimination of the Right of Same-Sex Couples to Marry." He just thought that change would kill it.

This is dereliction of duty by the Attorney General, who is supposed to represent The People of the State of California. The People have spoken, but Brown -- even in rejecting the supposed best argument against Prop 8 -- is still ignoring the electorate, just like his predecessor. The only reason why the whole question of legality of same-sex marriage made it to the California Supreme Court last year is because the last AG, Democrat Bill Lockyer, sent an CA Appeals court invalidation of Gavin Newsom's rogue marriages to the Supremes for review. They did just what Lockyer wanted -- they overturned it, and created a right to same-sex marriage from whole cloth.

And you Weiner Nation fans, don't ever forget -- this whole deal is partly HIS fault. Savage sent Brown's AG campaign $5,600.00 and blew off conservative Republican candidate Chuck Poochigian.

[Penny]

For what it's worth, here's the end of a length reply I had from Arnold:

"Proposition 8 now appears to have passed, pending certification by the Secretary of State. Some people, however, have filed lawsuits challenging the amendment's legality. Both the official proponents of Proposition 8 and opponents of Proposition 8 urged the California Supreme Court to hear the lawsuits directly, bypassing the lower courts, and I am pleased that the court has agreed to hear the cases in order to provide the people of California with finality regarding Proposition 8. Whether the Court rules in favor of or against Proposition 8, I will uphold its decision.
"Again, thank you for taking time to write and share your comments."

I object to a previous comment that it's "our" fault. Many of us work our hearts out trying to let right be done, so the blame must be directed elsewhere.

Regards . . . Penny

[Virginia Ridgerunner]

So, how can the Cali Supreme Court strike down a state constitutional amendment and still keep a straight face?

[Diogenesis]

Mass Chief's Judge (overruling public) was born in ... S. Africa.

Obama (overruling public) was born in .. Kenya? (or who knows?)

If they get their way, seized America will continue going .... down.

[Adder]

But he said he believes it is unconstitutional because it violates the inalienable right to liberty.

How so?...No one said to round up the queers and they still get to prance in their vile little parades.

What liberty is being denied?

They are free to live with whomever they choose, free to practice their genital preference but they cannot call themselves “married”.

Its not a “liberty” issue.

The supreme court has no say in this...the people have spoken.

[Dr. Bogus Pachysandra]

“The court gave Brown 30 minutes, but instructed him to “divide his time between his arguments in support of, and his argument in opposition to, the validity of Proposition 8.”

The ultimate “Kerryism!”

[Loud Mime]

We the people meant the writers of the Constitution during the convention of 1787, not the general public, not the citizens at large. Moreover, the preamble has no legal force; it is not law.

The real question in this issue is who determines the path for the morals of a society. The society in the most liberal state in the union has twice claimed that no rights are to be taken from homosexuals; they just can’t use the term “marriage” to describe their relationships.

Since when is a word a “right?”

Looks like I’m going to write a few letters to the newspapers today.

[Ronin]

It's bizarre on the face of it.

What they are really saying by even agreeing to hear the case is "The constitution is what WE say it is.

And that is downright scary, if you ask me.

[DoingTheFrenchMistake]

From the article... "Brown told the court in a filing that he doesn't think that Proposition 8 is a constitutional revision or that it violates the constitutional separate of powers. But he said he believes it is unconstitutional because it violates the inalienable right to liberty."

[Carry_Okie]

The court gave Brown 30 minutes, but instructed him to “divide his time between his arguments in support of, and his argument in opposition to, the validity of Proposition 8.

Actually, it's worse. It is a violation of the principle of advocacy of an attorney for his client.

[jeffc]

Brownie boy needs to be told what his job is and what he is charged with doing in that capacity, whether he likes it or not.
The CSC needs to understand that overturning this AMENDMENT will signify that they themselves have over-stepped their bounds by ruling part of the Constitution (the amemndment) unconstitutional. What would prevent them from ruling other parts of it, that they do not like, unconstitutional?

They also need to beware that overturning this could severely split the nation, as conservatives will, rightly, interpret this to mean that they no longer have a say in their government. I would further mention a word of caution (not a threat - more of a watch-what-you-do-man thing!); let things get out of hand like this and they might not make it to an impeachment trial . . .

[Sir Francis Dashwood]

It is a violation of the principle of advocacy of an attorney for his client.,/i>

The chances of getting him disbarred for it?

[fwdude]

Biased article. The Court might not strike it down, as well.

[waxer1]

The people of California voted on this twice! and in overwhelming numbers to boot.

This is insane! Being a native Californian, this type of things happen all the time. It was always so frustrating.

[AuH2ORepublican]

“Brown told the court in a filing that he doesn’t think that Proposition 8 is a constitutional revision or that it violates the constitutional separate of powers. But he said he believes it is unconstitutional because it violates the inalienable right to liberty.”

---

Let’s see, the only theory under which a California constitutional amendment could be “unconstitutional” under the state constitution is if it was not adopted correctly (such as if it was a “revision” requiring legislative supermajorities for its proposal instead of a plain-vanilla amendment that could be proposed by citizen initiative), and the only way that Prop 8 could be deemed not to have been adopted correctly is if it were deemed to be a constitutional “revision,” and Jerry Brown admits that Prop 8 is *not* a constitutional “revision,” but he still argues-—in a legal forum!-—that this amendment to the California constitution that he admits was validly adopted is somehow unconstitutional? This guy must have done WAY too much drugs in the 60s and 70s.

If a script writer came up with this scenario, nobody would think his movie would be even remotely plausible.

[ScottinVA]

This is amazing. Proposition 8 doesn’t limit the rights of homosexuals to marry; only that they can’t marry members of the same sex. IOW, the same rights as everyone else.