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Loading ...Proposition 8 Ruling Coming Tuesday
05.22.2009 3:25pm EDT
(San Francisco, California) The California Supreme Court will issue its long-awaited decision on the validity of the state’s same-sex marriage ban on Tuesday.
The high court announced the pending opinion on its website Friday.Prop 8 was passed by voters in November by a slim 52 percent. The initiative by conservative groups bans same-sex marriage in state.
The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights immediately filed lawsuits challenging the constitutionality of the vote. They were joined by additional suits by the cities of San Francisco and Los Angeles and a legal opinion by California Attorney General Jerry Brown.
The Supreme Court heard the case on March 5.
For the court there are three issues to be determined: Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?; Does Proposition 8 violate the separation of powers doctrine under the California Constitution?; and 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?
Arguing for the litigants was Shannon Minter, the NCLR attorney who earlier successfully argued the gay marriage case before the high court.
Minter told the court that Prop 8 should be ruled invalid because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone.
He also argued that Proposition 8 improperly attempted to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities.
Minter said that under the California Constitution, such radical changes to the organizing principles of state government cannot be made by a simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.
The California Constitution establishes two ways that it can be altered. A substantial change to the principles or basic structure of the constitution, called a “revision,” requires the involvement of the legislature and a more deliberative process. A less substantial change, called an “amendment,” can be enacted by a simple majority vote of the people.
The California Supreme Court should strike down Proposition 8 because it is, in fact, a revision, Minter argued.
The principle of equal protection, which prevents the majority from oppressing minority groups, is central to our constitution and our democratic system of government. Proposition 8 would limit that fundamental principle of equality for LGBT Californians and undermine the very purpose of equal protection for everybody he told the court.
Attorney Christopher Krueger, representing California Attorney General Jerry Brown, told the court his office disagreed with Minter’s argument that Prop 8 was an improper revision of the constitution.
But said the measure should still be struck down.
Krueger argued that Prop 8 was unconstitutional because it conflicted with an “inalienable right” to liberty that the state Supreme Court found last year included the right of same-sex couples to marry.
Representing the conservative groups behind Prop 8 was Kenneth Starr who led the inquiry into President Bill Clinton’s affair with Monica L. Lewinsky.
Starr argued that the will of the people must be respected by the court saying the groups challenging Prop 8 wanted the court to ignore “inalienable right” of the people to change the constitution.
“The people do have the raw power to define the rights,” Starr told the court. “We govern ourselves – and we may govern ourselves unwisely.”
He also argued that the measure also invalidated the 18,000 same-sex marriages between the time gay marriage was declared legal and voters went to the polls in November.
Two separate groups are not taking any chances should the court fail to overturn Prop 8 and are preparing voter measures to overturn it in 2010.
The California Secretary of State has given the group Yes on Equality until Aug. 17 to collect the nearly 700,000 signatures needed to qualify its initiative for the 2010 ballot. It would ask voters to repeal Prop 8. The other, by two college students, would strike the word “marriage” from all state laws.
©365Gay.com 2009
Christopher Krueger…oh my goodness. He could not even tell the court what was an inalienable right when asked. He stood there silent unable to answer for what seemed like an eternity.
The Attorney Generals office’s argument centered around inalienable rights. So, it struck me as horrific that Krueger could not even list one of the many when asked to list a few since he could not define an inalienable right. Oh my God!
Then Minter, when asked to explain the harm upholding prop 8 would do to the Gay Community, barely answered the question with short nondescript sentences. Sadly, it was one of those moments that we needed someone who was aware that the Country was watching live via the internet and was able to give a big and small picture response with soaring heartfelt truths, including pain, suffering and agony. It was an opportunity to win over hearts and minds. Yet, that did not happen.
Minter is still to be praised for his effort.
In totality the lawyers arguing in support of Gay Marriage missed a big fat soft pitch lobbed over the plate to them by the court.
I appreciate their effort but that oral argument was one of the most painful oral arguments I have ever listened to.
I would not be expecting to win much more than the 22,000 marriages remaining legal.
BTW, I did offer my assistance to a member of one of the legal teams but was told they had it covered. Oh well.
@Robert–In a fair world, yeah, you’d think that interference with California’s internal politics would be a factor in overturning 8. Hell, what’s to stop a foreign country from bribing enough voters to assemble a petition for secession from the US, then pass it in a referendum?
@Steve P–Out of the entire population of Californians, there are 36,000 people who got married there, but whose marriages will not be treated the same. Those marriges may yet be annulled against the wishes of those couples, and none of those people will hold the right to do with somebody else what they’ve done with this person. If you feel offended by my comment of “circus freak,” you might want to consider that it wasn’t any kind of personal attack. Surely you’re not so linear and narcissistic that you don’t see the comment as a description of the law and NOT those who are victimized by it? (Hint: I’m assuming that you are sharp enough to make the distinction.)
There’s now a new factor in all this, which might make the 8 decision a minor gesture. Every one of the special ballot issues failed, and the state not only has to make $24 billion in spending cuts, but there is growing talk of a constitutional convention. Constitutional convention means you keep some and rewrite some. There’s a lot of anger over the prospect of a ballot issue invalidating marriages, and some of you Californians (including you, Steve P) might want to focus some of your anger on the process of constitutional clean-up. All kinds of things would be up for grabs, including the possiblity to get rid of the mob-rule ballot initiative process that created this monster. Might be possible to make California law distinguish between civil and religious marriage.
I have an open question to any one willing to respond: Does it make any difference that Proposition 8 was potentially voted in under the influence of propaganda campaigns that included funding from outside California’s borders? More specifically, the previous question alludes to the fact that outside forces meddled in California’s legal process. Surely such an occurrence will carry some weight with respect to the decision of the Supreme Court Judges presiding over the case.
I’m absolutely sure we will win this battle for equality when intelligence and common sense races by ignorance and hate.
Which is clearly happening. March on! Peace and happines…
“Starr argued that the will of the people must be respected by the court saying the groups challenging Prop 8 wanted the court to ignore “inalienable right” of the people to change the constitution.”
Uhm…Does Ken Starr know what the word ‘inalienable’ means?
If prop 8 passes which I suspect it will, the next step is to get enough votes to repeal prop 8 on the ballot box. We just have to keep trying and trying.
There is no great suspense here. Anyone who watched the oral arguments could see that they do not have the guts to go against the “will of the voters” but will allow marriages prior to Prop. 8 to stand.
The key to ending this culture war over same-sex unions was never California or New York. We’ve been wasting too much time and too many resources in these big quagmire states. We’ve sank 45 million dollars into California alone and ended up with nothing to show for it. Especially at a time when the mood is changing in the heartland of America, it is time to seize the moment in places like:
New Mexico, Colorado, Iowa, Minnesota, Illinois…
If we can score some major victories out in Middle America, then we will claim victory at the federal level. It is inevitable.
They say they are collecting signatures for 2010 and they have until August 17 to do so. I am a legal voter in California and have not seen anyone petitioning for my signature. How can I make sure they get the necessary signatures?
Wow, even if my marriage “survives” I’ll either have survivor’s guilt, or I’ll be a freak? And this is coming from other gay people.
Hmmm, think I’ll turn down both those unappetizing descriptions and feel neither like a freak or feel guilt, just work harder to get that damned proposition overturned as soon as possible.
I would like the decision to invalidate Prop 8, however, my hopefulness is absent. I will not be surprised if the Supreme Court upholds H-8 and retroactively revokes the 18+ thousand marriage contracts. The supporters of H-8 would be thankful and unsympathetic for the loss of a people’s sense of stability of laws.
Splitting the baby only makes those 18000 couples into the legal equivalent of circus freaks. The law mocks them because they might be able to divorce, but the can’t remarry.
I mentioned (in earlier thread) the prospect of riots. Gavin Newsom clearly had this in mind for requesting a delay past Thursday. Unfortunately, California history gives plenty of reasons to riot. The labor riots in San Francisco helped build the power of unions in the state. The Watts riots helped move L.A. out of a mentality where it was OK to pretend that blacks weren’t real people (but hey, we’re not *racist* like those people in the South!). The White Night riots showed the power of gays to scare people when we’re pissed off and wronged; they also forced San Francisco’s establishment to stop acting quite so much like good ol’ boys and start being a little more sophisticated, which helped stop the slide the city was on in the late 60s and into the 70s. The Rodney King riots forced the LAPD to account for its sexism, racism, paramilitary mentality (common among West Coast police), and general impulse by individuals and the whole organization to regard themselves as above the law.
All this will be idle speculation if it emerges that the justices chose law over self-preservation. It’s not that gays are tired of fighting, we’re tired of being marginalized by the system, but still taxed and still expected to follow the law. It’s not that gays went too far in wanting to be married; maybe this is the day when we’re forced to push back, and sometimes the only way you arrive at a constructive end is through destructive means. I’m not advocating that, but you had drought and recession along with a court verdict in 1992, and I think it was the same in ‘79. I guess it’s true–the revolution is waiting for a spark.
And I agree with LOrion – ANGER and WORK! Sometimes I work best when I’m mad. Anger gives me energy.
Whether H8 is overturned or not, the 18,000 couples will probably still be married. Over time, people will realize that those couples are still together and that their marriages haven’t caused any harm. The doom and gloom predictions of the far right will look more and more ridiculous. People will see this and, at some point, will vote to recognize the right of all California couples to marry.
Hey, Alex I like your comment. As we all have to go through the FIVE Stages of GRIEF all over again come Tuesday… and even the 18.000 couples will forever have ’survivors guilt.’…
There will come a time for the Anger stage. We can’t exactly spend much time with Denial, so to Anger it is….
Next is Bargaining, can’t do much there either, then Depression…Most of us are still here from Nov. 5 ..and last, at least for Grief is Acceptance.
NOT, NOT going to happen .
Yeah, ok I like ANGER, I’ll go with congratulating the 18,000..then right to ANGER…and WORK!