California Supreme Court To Hear Cases Challenging Gay Marriage Ban

SAN FRANCISCO — California's highest court agreed Wednesday to hear several legal challenges to the state's new ban on same-sex marriage but refused to allow gay couples to resume marrying before it rules.

The California Supreme Court accepted three lawsuits seeking to nullify Proposition 8, a voter-approved constitutional amendment that overruled the court's decision in May that legalized gay marriage.

All three cases claim the measure abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

As is its custom when it takes up cases, the court elaborated little. However, the justices did say they want to address what effect, if any, a ruling upholding the amendment would have on the estimated 18,000 same-sex marriages that were sanctioned in California before Election Day.

Gay rights groups and local governments petitioning to overturn the ban were joined by the measure's sponsors and Attorney General Jerry Brown in urging the Supreme Court to consider whether Proposition 8 passes legal muster.

The initiative's opponents had also asked the court to grant a stay of the measure, which would have allowed gay marriages to begin again while the justices considered the cases. The court denied that request.

The justices directed Brown and lawyers for the Yes on 8 campaign to submit arguments by Dec. 19 on why the ballot initiative should not be nullified. It said lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, must respond before Jan. 5.

Oral arguments could be scheduled as early as March, according to court spokeswoman Lynn Holton.

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"This is welcome news. The matter of Proposition 8 should be resolved thoughtfully and without delay," Brown said in a statement.

Both opponents and supporters of Proposition 8 expressed confidence Wednesday that their arguments would prevail. But they also agreed that the cases present the court's seven justices _ six of whom voted to review the challenges _ with complex questions that have few precedents in state case law.

Although more than two dozen states have similar amendments, some of which have survived similar lawsuits, none were approved by voters in a place where gay marriage already was legal.

Neither were any approved in a state where the high court had put sexual orientation in the same protected legal class as race and religion, which the California Supreme Court did when it rendered its 4-3 decision that made same-sex marriage legal in May.

Opponents of the ban argue that voters improperly abrogated the judiciary's authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.

"If given effect, Proposition 8 would work a dramatic, substantive change to our Constitution's 'underlying principles' of individual equality on a scale and scope never previously condoned by this court," lawyers for the same-sex couples stated in their petition.

The measure represents such a sweeping change that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban's backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.

Over the past century, the California Supreme Court has heard nine cases challenging legislative acts or ballot initiatives as improper revisions. The court eventually invalidated three of the measures, according to the gay rights group Lambda Legal.

Andrew Pugno, legal counsel for the Yes on 8 campaign, said he doubts the court will buy the revision argument in the case of the gay marriage ban because the plaintiffs would have to prove the measure alters the state's basic governmental framework.

Joel Franklin, a constitutional law professor at Monterey College of Law, said that even though the court rejected similar procedural arguments when it upheld amendments reinstating the death penalty and limiting property taxes, those cases do not represent as much of a fundamental change as Proposition 8.

"Those amendments applied universally to all Californians," Franklin said. "This is a situation where you are removing rights from a particular group of citizens, a class of individuals the court has said is entitled to constitutional protection. That is a structural change."

The trio of cases the court accepted were filed by six same-sex couples who have not yet wed, a Los Angeles lesbian couple who were among the first to tie the knot on June 16 and 11 cities and counties, led by the city of San Francisco.

Comments

[ProudMormon]

It seems to me that the judicial system is the last bastion of tyranny in our society. All other branches of government have checks and balances. In the judicial system, no such checks of balances exist.

One system of checks and balances that is commonly used is the requirement for a supermajority to overturn the expressed will of another branch of government.

I think a supermajority or even better a unanimous ruling should be required to overturn any constitutional amendment. The expressed will of the voters should be paramount, while egregious cases of unconstitutional rulings could still be nullified.

Having the will of millions of Californians overturned by one mayor is tyranny. Having a court rule with the smallest possible majority of 1 and overturn millions of voters is tyranny. It's time for activist courts to live under checks and balances like every other branch of government.

[Nikola Tesla]

If you don't like the way we run the state, you don't have to live here.

[DubiousVoter]

Wrong again, the judiciary is the last check on tyranny!

Go spend some time reading the Constitution and the Federalist Papers. You could learn a thing or two from Jefferson and Madison.

I certainly hold them in much higher esteem than polygamist Smith!

[ProudMormon]

Did Jefferson and Madison think that the role of the Judiciary was to rule the Constitution itself unconstitutional? I think not.

[MamaBird62]

Judges are appointed and can be fired by the people. Californians can recall judges, and have done so in the past.

[abbeyroad]

watch your uteruses ladies.

the mormons are gonna try to come after that next.

[Nikola Tesla]

If you're going to go after the religious right, please include all offending groups, including the Catholics, the Baptists, the Church of God and the AME.

All are bigoted organizations that seek to legislate from the pulpit.

All are enemies of free thinking Americans.

[DubiousVoter]

ACLJ Amicus in opposition to petition:

11. “The issue here is not, as Petitioners characterize it, ‘whether voters can eliminate the fundamental right to marry only for a particular group, based on a classification this Court has held to be ‘suspect’ under California’s equal protection guarantee, but whether the voting citizens may clarify, as they have done through Proposition 8, the definition of that right.”

12. “ Petitioner’s contention that a decision upholding the validity of Proposition 8 would undermine the Court’s ability to enforce the fundamental guarantees of the equal protection clause is such a way as to protect minorities from discriminatory action by the majority is entirely incorrect. ...An enactment that would, by its language, bar only African-Americans from marriage or exclude only women from public schools would certainly implicate the equal protection guarantee because such an enactment would undoubtedly affect only that particular class of persons in a disparate manner. By contrast, Proposition 8 defines the scope of the right to marry in the state of California in manner that applies with equal force to all citizens of the state.”

Here they refuse to recognize us as a legitimate class of citizens and, more to the point, refuse to recognize their bigotry!

[DubiousVoter]

ACLJ Amicus opposition to petition:

10. “That the definition in of marriage in [Proposition 8] has a different impact on citizens wishing to enter into a union with an adult of the same gender, or with multiple adults of either gender, or, for that matter, with a child, does not alter the reality that Proposition 8 effects nothing more than a clarification of the definition of a single right recognized in the California Constituti­on.” (note: point of pedifilia repeats in two paragraphs­.)

This is the most offensive argument that they put forward; not surprisingly, they make this argument twice.

[DubiousVoter]

ACLJ Amicus in opposition to petition:

9. “Petitioner’s response that the present situation is distinguishable from Frierson (death penalty) because the definition of marriage found in Proposition 8 discriminates against a “suspect class” of persons on the basis of their sexual identity further reveals their misunderstanding of this amendment.
Just as the amendment in Frierson -- reinstating the death penalty and clarifying, contrary to this Court’s prior holding, that its imposition did not constitute the infliction of cruel or unusual punishment within the meaning of the California Constitution --- applied equally to all citizens, so too does the definition of marriage embodied within Proposition 8. To be sure, imposition of this particular definition of “cruel punishment” affects some citizens differently from others.”

Here, not only do they insult our intelligence, since we don't see this they way they want it viewed... they argue that our status as "suspect class" (a historically oppressed class), is equivalent to murderers subject to the death penalty.

[Nikola Tesla]

Now THATS f8cked up.

[DubiousVoter]

ACLJ Amicus claims in opposition to Prop 8

7. “Proposition 8 is limited to a single subject (marriage), yet contains a mere fourteen words. Proposition 8 will not result in ‘substantial changes’ to the operation of the former system of institutionalized marriage in California.

8. “In fact, Proposition 8, rather, restores the status quo of marriage between a man and woman as it has existed in California since the constitution’s adoption in 1850, after only a brief judicially-mandated interruption of 143 days.”

Again, they push the idea that it's just a simple change. They also have decided that rights granted within 143 days are not true rights, merely and "interruption" of the status quo...

[DubiousVoter]

4. “Proposition 8, ... adds only one sentence to the state constitution by insertion of a new section without deleting or altering any pre-existing provision.­.. Further, the single amendment enacted by Proposition 8 is not ‘multifarious’ in effect. In a narrow definitional manner, it touches only one subject matter; the institution of marriage.”

5. “Rather than restricting and diminishing a pre-existing, clearly expressed constitutional provision, Proposition 8 simply seeks to express a pre-existing constitutional definition in no uncertain terms.”

Words can be very powerful, it doesn't require 400-12,000 words to make a sweeping change, as they claim. Clearly they don't recognize the Court's authority to interpret the Constitution.

[ProudMormon]

It doesn't affect any other issue. Gays still have all the same civil rights as every other Californian.

And marriage already has plenty of laws on the books defining which groups qualify and which don't. Having laws against incest or polygamy or setting an age limit doesn't destroy the foundations of society.

[echo]

It IS the issue. Equal rights. Nothing else will suffice.

Did you know that 15-year-olds can marry in Utah? Now THAT's wrong.

[DubiousVoter]

American Center for Law and Justice Arguments opposing petition:

1. “Proposition 8 does not create far reaching, sweeping, or profound changes in the state’s constitutional scheme. Rather, it merely clarifies the definition of a single right recognized in the California Constituti­on.”

2. “ In order to constitute a revision, an enactment must either be ‘so extensive in its provisions as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions, or accomplish­... far reaching changes in the nature of our basic governmental plan...”

Since the intent of the Constitution is foremost to secure the equal protection of ALL California citizens, this is disingenuous on its face

[abbeyroad]

a mormon accusing me of being prejudice.

oh, that's rich.

how many african-americans attend your "church" ?

[ProudMormon]

Quite a few, actually. Have you ever attended to see for yourself?

Blind hatred is so much easier than informed hatred.

[luvobama]

Yours is both and then some. I detect some self loathing as well.

[MarkInEugene]

You Proud Mormon....­are so obsessed with gays and lesbians..­..that here you are....for the last 2 hours on this thread berating, proselytizing and extolling the virtues of your position. Why? What is it that keeps you here goading this good people on? Yeh....the­y are the best people you could hope to know because they had the guts to be themselves!! They would throw you a life preserver in a storm. They would get your back in a fire fight, yet you hate them! You hate some of the most honest people you’ll ever meet. You hate them because of your own homophobia! But you won’t have any of it! No way….you are a true crusader till the end! So keep up the good fight…keep trashing the homosexuals! What could be more important in your life?

[DRaymond]

If the Supreme Court does not vote it down I think that same sex marriage proponents will put up a measure that will overturn it. If they do it cleverly they could write the revised ammendment to make it sound like it was in fact affirming religious rights.

But I predict that the court will overturn prop 8. Remember that CA already passed an anti-gay-marriage proposition years ago and the court said in its ruling that marriage was a fundamental right and that fundamental rights are not subject to popular vote. I cannot logically see the same court that made that ruling allowing Prop 8 to stand.

[MarkInEugene]

Gays just wanta have fun. Go away fundamenta­list....yo­u're such an angry drag in life. Don't you have anything better to do? Go do some woodworking or go for a hike. What are you so pissed about? Why are the personal lives of gays and lesbians so important to you? Can't you just share this planet with other people and their unique lives?

WTF is your problem all the time??? You are such a hateful bunch.....­all the time! What a bore...wha­t a downer!

[abbeyroad]

MORMON, INC. is a $60 billion dollar empire run by the CEO monson.

they send off innocent sheep on bikes looking for another sucker that'll give up that 10% tithing every week.

KA-CHING !!!!!!

i think if they started paying taxes, we could get the federal deficit paid off a lot faster.

[ProudMormon]

You clearly have an axe to grind against Mormons in general. Are you just apprising yourself of this Prop 8 flap to unleash your prejudices? Or is this solely a result of this latest vote?

My guess is the former.

[luvobama]

You can try and make this about anything but a civil rights issue. it won't work. Your projecting prejudices that are your own. Come on you big fake. Tell us why you're here.

[echo]

ProudMormon, how would you like it if the voters decided which religion you could practice?

[MarkInEugene]

Your hatred is endless! To hatred Proud Mormon.. To hatred then!

[LeftofTerry]

Could voters decide that it is OK to descriminate against African-Americans? Women?
Of course not. I think this will be overturned.

The whole point of a constitutional right is that it exists regardless of public opinion.

[ProudMormon]

Prop 8 did "discriminate" against women. It solidified the sex discrimination already accepted in the government by acknowledging the fundamental difference between the sexes.

At it's core, Prop 8 is based on extending the forms of sex discrimination to marriage which have already been embraced by government based on the relevance of sex in certain public policy issues.

[abbeyroad]

the LDS stuck their noses in where their noses didn't belong. MY BEDROOM.

mormons did all the leg work. mormons donated a MAJORITY of the money to yes on 8.

they had all their little devils doing all the grassroots work.
knocking on doors. calling everyone they knew in california.

they even had yes on 8 signs in their yards IN UTAH !!!!

the church TOLD every single one of them to donate.

the church's little minions have been working overtime on these boards all week trying to fuel a fire to DEFLECT BLAME onto others (like the blacks and latinos). but we know their tactics, and it won't work.

LATTER

DAY

DEVILS.

THEY ARE BIGOTS THAT NEED TO MIND THEIR OWN BUSINESS AND KEEP THEIR FETID , PHONEY "RELIGION" OUT OF OTHER PEOPLE'S LIVES.

[MarkInEugene]

laughing out loud....ye­h!!!!! Right on abbeyroad whatever whoever you are...!!!!

[ProudMormon]

There was more money donates AGAINST 8 than for it. And more out of state poured in AGAINST 8 than for it.

Why are you so offended at a more level playing field?

You're bothered that millions of dollars of anti-8 out of state money wasn't able to skew the outcome of the election?

The church read one statement one time in services. That's it.

There was no benefit for supporting 8. There was no punishment for opposing it.

The church didn't allow the use of church facilities. Or call lists. Or administrative functions. Or pretty much anything else. They donated no tax exempt church money to pro-8.

It sounds like you're offended that individual members were willing to donate their time and money for a cause they believed in and supported as individuals. Persecuting people for their political activities and self expression.

[luvobama]

Thank you faux mormon. You just proved my point. You know nothing about the mormon church or their involvement in this proposition. Now let's start working on why you are here. Be honest. We're here for you.

[Nikola Tesla]

Of course you cannot source your argument, because you are making it up.

[DubiousVoter]

I am here as a representative for our community and a staunch defender of the Constitution; I won't let them spew their slanderous lies without a strong response rooted in the Constitution and caselaw.

You can count on me to be here every day, for endless hours typing counter arguments to their vitriol.

I will do anything I can to promote our rights and silence the voices of discrimination.

I owe it to my ancestors, who were "original plantars" at Virginia in 1610. My 12th great-grandfather came to this country on the Godspeed and I intend to carry on the legacy of my family, including my great-cousin President Taylor.

[shirleyfeeney]

I heard someone on the radio this morning here in L.A. explaining Prop 8 like this. If the majority rule only is to apply here, then you're taking on a whole new challenge. His example was this: Say the population of women is at 51%, and women decide they don't want to pay taxes anymore, only the men. If they are the majority, then a prop like that would pass. But we're talking about a constitutional amendment based on the "equality for all", not a majority rule issue. The majority of Americans would not have voted in favor of prohibition, women might never have gotten the vote, and so on.

This is a constitutional issue, not a law of the land based on a majority wins vote. Please, hear the cases and overturn the ban once and for all.

Do I have any CA takers on women no longer paying taxes? ;)

[MarkInEugene]

Right on Sister!!!!!!

[ProudMormon]

Why not? The 14th amendment would seem to mandate a flat tax, so that everyone is treated equally under the tax laws.

That's clearly not the case. "Progressives" want a very unequal tax law in place, despite all their hand wringing over equality.

Why do you suppose that is?

[Nikola Tesla]

It was a Wealthy Republican, Teddy Roosevelt, that instituted the progressive income tax. You've had over a hundred years to overturn it, but can't, which only proves that whatever position you take always seems to be the wrong one.