Prop 8 & the California Supreme Court: Arguments Will be Heard

The California Supreme Court today has announced that it will hear oral arguments regarding the constitutionality of the recently passed voter initiative reversing the right of same-sex marriage in the state.

The Court has also denied a request to ban the passage of the initiative (a stay) until it hears these arguments and reaches a final decision on the initiative.

From the L.A. Times:

"The California Supreme Court today denied requests to stay the enforcement or implementation of Proposition 8, and at the same time agreed to decide several issues arising out of the passage of Proposition 8. The court’s order, issued in the first three cases that had been filed directly in the state’s highest court challenging the validity of Proposition 8, directed the parties to brief and argue three issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?"

This will take a little while longer.  Briefs have to be written, oral arguments have to be made, and the justices have to reach a decision.  Stay tuned…

Comments

[Glenn Lennox]

They won't have the balls to stop it. People like this are usually weak pussies.
They will make sure the whole process takes a long time so that people's feelings about it will fade then they will allow it to go through unapposed.

Politicians are predictable and weak.

[Charles Henry Tabor]

I want and agree with same sex marraiges. We fight the wars and cant get anything. We should have family values in each state. We are all our own person and have the rights gay people spend more money than you will ever know at a marriage and put alot of money back into this world.

[joshua]

If equal rights are being served then we wouldn't have these arguments. It's simple... "We, the people..." not "We, some people..."

[Josh]

Are you serious? I don't agree with prop 8, but this is crazy. If we let the rule of law be over-run than a lot more than just the right to marry will be at risk. This is short term gain for long term pain. Let's just re-organize and put a reversal on the ballot for next year. We don't want a bunch of judges deciding that amendments to to the constitution are unconstitutional! This is crazy people.

[Carl]

What happens when a legally married gay couple from Massachusetts goes to California? Under the FEDERAL constitution, California has to recognise that marriage... just as they have to recognise other states' drivers licenses and so on..

Am I right?

[KC]

Josh, the "rule of law" is that laws apply to people equally. It has nothing to do with popular votes. The constitution exists to protect the minority from the tyranny of the majority. Desegregation and inter-racial marriage would not have happened when they did if left to popular vote. This is part of the checks and balances of our gov't. You should study it a bit.

[KC]

Carl,I am sorry to say you are not right. Bill Clinton signed the Defense of Marriage Act which allows states to disregard gay marrages from other states.

[DD]

Yo - Josh...it isn't crazy. It SHOULD BE UNCONSTITUTIONAL to allow citizens to vote to rescind the rights of a minority...that is why we have judges, and supreme courts...and any supreme court that would allow a measure to disenfranchise a group of people from marrying, or from any other right, should be ousted!

[Harley_Daddy]

What you fail to realize is that there needs to be a public forum in which the the legal and social advantages of recognizing gay marriage can be discussed. (For far too long the religious right has made this a religious issues - religion can never be logically debated. )

This is a POSITIVE step.

[Steve]

This is absolute craziness. The Supreme Court is required to follow the constitution. The constitution now says that gay marriage is not allowed. Its black and white. The Supreme Court cannot render something unconstitutional that is part of the constitution. People who think that a court can unlawfully set aside the constitution should be wary of what they ask for. The next time a court arrogantly and unlawfully decides not to follow the constitution, it might not work in your favor. Be careful what you ask for. You might just get it. If you don't like the constitution, work to change it. But the Supreme Court has no say in it at this point, and rightly so.

[Steve]

Furthermore, there is NO "right" to marriage, not federally or in any state. Marriage is a privilege. You may not like that, you don't have to like it. But its the truth. So lets all just take a dose of reality and stop referring to the "right" to marry. Such a "right" does not exist, not for gays, and not for straights.

[mexczar]

Marriage is an ancient institution obsolete and artificially mantained by religious zelots. No gay should want to belong to such institution NO goverment sponsored marriage for gays or straight. Civil Union contracts for everybody. Prohibition of marriage is the answer.

[Bill]

Sorry S T E V E, you do not know what you are talking about and should study our governmental structure. I believe U.S History was taught in high school…. My guess is you did not finish high school.

There are three branches of government to act as checks in balances for each. There is the Executive Branch, Legislative Branch and the Judicial Branch. The Supreme Court has every right, authority and power to throw out amendments if they are un-constitutional and unlawful and if the people are unhappy with the Supreme Courts decision, there is a system in place to override their decision through the legislative Branch.

I do not have time to write the entire process out for you but if you would like, I could recommend an adult education class for you that, can teach you all about the U.S System of Government.

Frankly, I think you just need someone to spank your ignorant white bottom red.

Prop 8 will be overturned

[Bill]

Sorry S T E V E, you do not know what you are talking about and should study our governmental structure. I believe U.S History was taught in high school…. My guess is you did not finish high school.

There are three branches of government to act as checks in balances for each. There is the Executive Branch, Legislative Branch and the Judicial Branch. The Supreme Court has every right, authority and power to throw out amendments if they are un-constitutional and unlawful and if the people are unhappy with the Supreme Courts decision, there is a system in place to override their decision through the legislative Branch.

I do not have time to write the entire process out for you but if you would like, I could recommend an adult education class for you that, can teach you all about the U.S System of Government.

Frankly, I think you just need someone to spank your ignorant white bottom red.

Prop 8 will be overturned

[Guga]

In my country 'marriage' is a church thing and IT IS NOT recognized by the law. What is recognized by the law is 'Civil Union'.

[Berribrand]

It's funny how everyone now thinks they have expertise in law, especially the religious conservatives.

Here's several tips:
1. Read the Constitution, specifically the part that says that the USA is a Republic and that no other form of government is valid... then look up the word, Republic.
2. Read up on the California Constitution, specifically the part about the difference between a Constitutional Amendment and a Constitutional Revision.
3. Read up on the role of the Judicial branch of the government and how judges are not legally allowed to be swayed by popularity contests, public opinion, or popular votes. They exist to interpret laws and the Constitution.

4. Realize that you nor I have the authority to make laws that tell the Judicial branch how they should interpret the law or the Constitution. Essentially, the "people" have no right to tell the Courts how to do their job. Prop 8 does just that. It tells the Courts how to interpret the equal protection clause of the Constitution violating the separation of powers ni the government. Thus, many legal minds agree that this is just one reason why Prop 8 is illegal.

[Mike]

Steve, why do you state things as if they are facts without knowing? You said "there is NO 'right' to marriage." But yet, in Loving v Virginia the United States Supreme Court wrote "Marriage is one of the basic civil rights of man." So there is a right to marry.

And you said "The constitution now says that gay marriage is not allowed." But, these same judges said just a few months ago that that same constitution said gay marriage was required. Sounds like this change is a revision to me, not just adding something new.

And this is why the case is going before a group of legal experts known as judges, and not just a random jury of the people.

[Niko]

It could get overturned if the four judges that found a ban on gay marriage unconstitutional haven't changes their minds ...It's not just about marriage as much it has to deal with tolerance towards being gay...

[JessPhitmen]

Again, straight folk have to wade through all those mental films they have seen from Pride, of men in assless chaps, and contemplate all those times gays insisted that busting men in public restrooms for sex was entrapment, to make a decision on marriage for gays. Ever wonder when the consequences of the past would pay off in the future? Its paying off now. The gay community as a whole does not portrait itself as responsible in the straight mind, and we just saw its best example in California.

[Gregory - iconicscooter (gay.com)]

And is ANYONE surprised at this:

http://www.washingtontimes.com/news/2008/nov/21/obama-to-delay-repeal-of-dont-ask-dont-tell/

Gays will not learn that Democrats are NOT on their side; watch what people do NOT what they SAY they're going to do.

This is a repeat of Clinton when he took office. AND he signed DOMA!

For DECADES the Dems have had the power to enact so much to reduce discrimination and HAVE NOT.

And how many other "special interest" groups and "minority groups" have they done this with and yet claim they are the party of such.

WATCH WHAT PEOPLE DO NOT WHAT THEY SAY THEY'RE GOING TO DO!

Get a clue!

[CowboyinBRLA]

All the guesswork and hypothesizing about "what the court might do" needs to be considered in the light of the three questions it asked both sides to brief (that is, to prepare written arguments on). Those questions were outlined in the original story.

The first question - amendment vs. revision - stems from the fact that the current constitution, adopted by the people of California, outlines the methods by which the constitution may be amended *or* revised. Amendments may be submitted directly by the electorate, or by the legislature; revisions must originate with the legislature. Whether or not there is jurisprudence to indicate what "revision" means as opposed to an amendment, I don't know. Obviously, a substantial rewrite of the Constitution would be a revision; the question here is: "If the public's 'amendment' seeks to overturn a decision of the Supreme Court, simply by adding a new section with contradictory language, is that truly an amendment, or is that a 'revision'?" Particularly since the original finding allowing marriage was based on a completely different section of the constitution, the state's guarantee of equal protection, it might appear that this is not an amendment at all.

The second question gets to a fundamental issue: If the Supreme Court is the ultimate arbiter of what the constitution means, and they have already ruled that "equal protection" means marriage equality, can the legislature's delegation of constitutional amendment power result in a popular vote trumping the court's inherent authority to rule on what the document means?

The last question bears answering, because the wording of the proposition says "Only marriage between a man and a woman is valid or recognized in California." Taken literally, the proposal would seem to require the state not to recognize the 18,000 same-sex existing marriages. That then raises the questions: If the court invalidates those marriages, is it not retroactively altering a contract then-legally-entered? And if it does not, does that not create a new "equal protection" problem?

For those who argue there is no inherent right to marry, the U.S. Supreme Court (as noted by another poster) has ruled otherwise, not just in the Loving case, but in the case of prisoners as well. In fact, it is not only a right, but a "fundamental" right, meaning laws which interfere with that right should ordinarily be subject to the highest legal standard, known as strict scrutiny--the state must prove that the law was narrowly tailored to meet a compelling state interest. When strict scrutiny is the standard applied to a discriminatory law, the law almost always fails.

Finally, for those who suggested this is the result of all those bare-butt chaps and the like, the fact is that California has long had some of the most outrageous public gay events, but the vote on marriage was closer there than in many places where gays "behave" and act like good little church mice. In most states, these laws have passed with 70% or more approval. So instead of blaming the victims, you might consider the key point: in this country, questions of basic civil rights are not supposed to be subject to a popular vote.

[Jonevri]

I understand the significance and consequences of Prop. 8. But why have we virtually ignored Arkansas passing a ban on allowing same sex couples to adopt. I can stand being told a little longer that I can't marry, but it makes my blood boil to be told that I would be unfit to raise children. That decision affects more than just our community, it affects the children that could be adopted and cared for. Where is our outrage over this?

Unless I am mistaken, we now have two states that have deemed us unfit to raise children. And in the case of Florida, we can be foster parents but not actually adopt.

Am I the only person outraged by this? Please tell me I'm not.