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

Several dozen couples turned up at the court Thursday morning after the blogosphere erupted with rumors and speculation the decision would be coming down.

The court has a 90-day self-imposed turnaround rule in issuing rulings after oral arguments in a case are heard. Rulings are handed down on Mondays and Thursdays.

That leaves just three more days for the court to issue its decision.  With the Memorial Day holiday on Monday, rulings scheduled for that day will be released on Tuesday, or the decision could come on Thursday.  The final day under the rule would be June 1.

Prop 8 was passed by voters in November by a slim 52 percent. The initiative by conservative groups bans same-sex marriage in the 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 Krueger 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 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 August 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

I was surprised to see yesterday that California Attorney General Jerry Brown took to the internet to outline and publicize his argument against Proposition 8. Since the oral arguments in front of the California Supreme Court begin tomorrow, I thought it might be interesting to take a look at some of the legal and political leaders who will be making our argument against Prop 8 known in the coming days. While I knew that he had publicly switched sides on this issue after the election, Jerry Brown’s willingness to write such an eloquent argument and publicize it is worth our attention.

My surprise at reading Brown’s piece didn’t stem from ideology; it’s not at all shocking that he opposes Prop 8 on an ideological basis. Brown, the former Governor of California and rumored future candidate for the same office, has a progressive pedigree unmatched by most Democrats in elected office.  While Governor, he was a strong opponent of the Vietnam War, worked to increase attention to environmental issues, and enacted progressive tax legislation. In 1976 and 1980, he ran quixotic campaigns for the Democratic nomination for President, and drew support mostly from young, progressive members of the Democratic parties.

So I wasn’t surprised because I thought Jerry Brown believed in legalized discrimination. Rather, I found his public argument surprising because he initially took a much more traditional stance on the law. As California Attorney General, Brown originally concluded he was required to defend the laws of his state in court, even if they were enacted by the voters instead of the legislature, and even if he disagreed with their contents. The LA Times reported shortly after the election that “it is usually the attorney general’s duty to defend the state’s laws, including those enacted by the people of California through the proposition process.”

But after further consideration, Brown reached the conclusion that he could indeed oppose Prop 8. He found that, like NCLR is arguing, the changes the proposition represented were a major revision to the state Constitution, rather than just an amendment. Now he’s planning on participating in the case, arguing in opposition to the law in court. It’s a surprising place for an Attorney General to find himself, but also a groundbreaking one.

Also interesting about Brown’s argument is that he never loses site of what this fight is really about. In a piece he posted yesterday on Daily Kos, Brown argues that the decision faced by the CA Supreme Court is simple:

“The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?”

This fight is about the protection of the fundamental equality at the heart of our political system, and I, for one, am thrilled to have a stalwart and courageous ally like Jerry Brown on our side. You can check out his argument at Daily Kos or the Huffington Post, or show your support by following Jerry on Twitter and Facebook.

The Project Marriage Coalition said it made the decision after a state appeals court in Sacramento turned down an urgent appeal of a lower court ruling that upheld Attorney General Jerry Brown’s definition of the proposed constitutional amendment.

In a one-paragraph decision an appeals court panel order cited previous appellate court rulings holding that an attorney general’s title and summary should be presumed to be accurate and should be upheld even “if reasonable minds differ.”

Further legal action would be moot even if the group won since the case could not be heard in time for any change to ballots prior to the election.

The ballot question originally had been described as a measure to limit marriage between a man and a woman. Last month Brown changed the description to say the proposed amendment would eliminate the right of same-sex couples to marry and that it could result in California losing tens of millions of dollars in taxes.

The Project Marriage Coalition, the umbrella group that collected enough names to have the question placed on the ballot, went to court, accusing Brown of twisting the wording to influence the vote.

At a hearing last week, attorneys for Brown’s office said the original definition was written before the California Supreme Court in May struck down the state ban on same-sex marriage. Hundreds of gay and lesbian couples began lining up for marriage licenses the following month when the ruling took effect.

Sacramento County Superior Court Judge Timothy Frawley said that the title and summary accurately summarized the proposition.

“There is nothing inherently argumentative or prejudicial about transitive verbs, and the Court is not willing to fashion a rule that would require the Attorney General to engage in useless nominalization,” Frawley wrote.

The coalition then sought the expedited appeals court hearing.

Gov. Arnold Schwarzenegger (R) opposes the amendment and has said he will campaign against it. Brown, a Democrat, also opposes the amendment.

Despite the legal wrangling over the initiative, a poll released in July suggests the measure is likely to be defeated.

Fifty-one percent of likely voters said they would vote against the proposed amendment while 42-percent would support it.