July 4th, 2009
 

365 Gay: News

18,000 Cal. gay marriages in limbo until March at earliest


(San Francisco, California) 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.

“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 (27)
  • soid Said: November 20th, 2008 at 10:30 am
    • i’m not optimistic. the best i’m hoping for is that my marriage remains valid.

  • Barb Said: November 20th, 2008 at 10:50 am
    • This is the best news we could have in California after the vote. We will get reconsideration within six months instead of waiting another two years to put it to a vote again. The SAME Supreme Court who GAVE us civil rights is hearing this matter; civil rights were REMOVED from a class of people who FORMERLY had civil rights. This particular situation is unique and I am glad to know THIS court will hear it again and make a decision. I’m one of the 18,000 and I remain married! This too shall pass; meanwhile, high profile, proud and vocal for all gays and lesbians. Peace and EQUALITY!

  • Thomas N.-V. Said: November 20th, 2008 at 10:56 am
    • Is there away to send the courts our stories about how much it means for us to be married. Also the state supreme court should look at if there really is any rational scienitic reason why gay marriage will affect “traditional” marriage, or children. Also how the Yes on Prop 8 side used fear and lies in their adds to incite a tyranny of the majority, that barely passed. Also the court needs to look at Canada, Spain, and other countries that allow gay marriage.
      Perhaps the court should overturn Prop 8 but specify that Gay marriage will not be taught in school before highschool. As this fear is what the other side used to get non religious parents to vote yes on 8.
      Tom in Long Beach

  • bud Burgoon-Clark Said: November 20th, 2008 at 10:57 am
    • Relief will ultimately come from the US Supreme Court, just as it did when Lawrence et al. v. Texas overturned the sodomy laws … AFTER Pres.-Elect Obama has a chance to appoint three or more Justices.

      Pray, light candles, burn sage, chant, dance, or whatever your tradition does, to ask the Universe for a filibuster-proof majority in the Senate so he can appoint equal-rights-friendly Justices and break the present stranglehold of FIVE (count ‘em!) conservative card-carrying Opus Dei Roman Catholic Justices.

      Bud Burgoon-Clark
      2nd class citizen, thanks to a bunch of PAGAN FERTILITY CULTS, AKA Konservative Kristianist Kultist Krazies (KKKK)

  • blacksteel Said: November 20th, 2008 at 11:13 am
    • I’m not optimistic that the CA Supreme Court will vote in our favor this time, especially because it has “refused to allow gay couples to resume marrying before it rules.” That’s not a good sign.

      In addition, the court has to be concerned about undermining its own authority if it is perceived to be thwarting the “will of the people” for a second time. The political and religious right will do everything possible to promote that perception.

      Finally, keep in mind that CA judges can be voted out of office. That’s how Chief Justice Rose Bird lost her job. She was removed in the November 4, 1986 election by an overwhelming margin after a high-profile negative campaign.

  • blacksteel Said: November 20th, 2008 at 11:26 am
    • bud Burgoon-Clark said: “Relief will ultimately come from the US Supreme Court…”

      That’s my expectation too, provided that the court has been realigned in the manner you outline.

      I wonder how many Americans understand just how dangerous it is to have 5 Opus Dei Roman Catholic Justices. It’s like having the Vatican in charge of the court.

  • J Merentes Said: November 20th, 2008 at 12:02 pm
    • Don’t worry. After march SCC will uphold marriage equality:
      As discussed below, upon review of the numerous California decisions that
      have examined the underlying bases and significance of the constitutional right to
      marry (and that illuminate why this right has been recognized as one of the basic,
      inalienable civil rights guaranteed to an individual by the California Constitution),
      we conclude that, under this state’s Constitution, the constitutionally based right to
      marry properly must be understood to encompass the core set of basic substantive
      legal rights and attributes traditionally associated with marriage that are so integral
      to an individual’s liberty and personal autonomy that they may not be eliminated
      or abrogated by the Legislature or by the electorate through the statutory initiative process.

  • LOrion Said: November 20th, 2008 at 12:03 pm
    • Congratulations sold and Barb, of course you remain married, as does Phyllis Lyon…what a travesty of justice if you don’t. But I agree with bud…the ultimate is to have SCOTUS grants full rights to all in country. JUST like they got in Nepal yesterday…just BAM. their Supreme Court allowed full GLBT rights including marriage. Is Katmandu the real Shangri-La?

  • Barb Said: November 20th, 2008 at 12:39 pm
  • Morgan Said: November 20th, 2008 at 12:55 pm
    • I am getting myself in a possible frame of mind to take steps toward moving to Canada and maybe changing my US citizenship to Canadian citizenship in the case that things do not improve and that we are indeed stuck with Prop 8 and if we don’t have more of the New England states approving gay marriage by 2012. as is predicted by GLAD (Gay and Lesbian Advocates and Defenders, if I know that would be the correct full spelling of the name of the gay and lesbian legal group that is working on bringing gay marriage to all of New England)

  • Bob Said: November 20th, 2008 at 1:13 pm
    • Why do they hate us so much? That is all I want to know. Do some people have to have another group of people to look down on so that they feel better about their miserable little lives?

  • Lucia Said: November 20th, 2008 at 1:19 pm
    • Yeah, i’m not that sure the court will side with us this time. I remember when the lawyers tried to stop Prop 8 from being put up for a vote the court didn’t want to hear it, they wanted to give the people of california the chance to amend the state constitution to reflect how they felt about gay marriage. I just don’t see how the court after letting this go so far is going to reverse the will of the people of california without running the risk of looking like despots.

  • Hope Said: November 20th, 2008 at 1:20 pm
    • Sorry, Barb but your wrong about speaking for God if you study the word of God you would understand that he did give us authority to speak his will concerning all things.

  • Hope Said: November 20th, 2008 at 1:25 pm
    • Sorry, Barb but maybe you should study the word of God and see that he did give us the authority to speak for him to spread the gospel (the good news).

  • God's way Said: November 20th, 2008 at 1:29 pm
    • Barb, It is very appropriate to speak for God. He gave us the authority to do so. Spread the gospel (the good news)