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

For three hours, the seven justices hammered away at arguments by attorneys on both sides, challenging just about every one of their arguments.

Prop 8 was passed by voters in November by a slim 52 percent.

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.

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.

Chief Justice Ron George asked what rights were lost other than being able to label their union as a marriage.

“Relegating same-sex couples to domestic partnership does not provide them with everything but a word,” Minter replied. “Proposition 8 changes the basic nature of our government.”

Justice Joyce Kennard noted that as with Prop 8 California voters had successfully overturned a Supreme Court ruling that the death penalty represented cruel and unusual punishment.

“Life is, at least in my view, a fundamental right,” Kennard said.

ACLU attorney Raymond Marshall, one of Minter’s co-council, replied that unlike Prop 8 the death penalty applies to all Californians.

“I think what you are overlooking is the very broad powers of the people to amend the constitution,” Kennard shot back.

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. 

Under questioning he acknowledge it was “somewhat of a novel theory,” but nonetheless legitimate.

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.

Justice Carol Corrigan challenged the assertion, noting that the marriages occurred after the Supreme Court ruled that gay marriage was legal.

“If Californians can’t rely on what this court says … who should they ask?” she said.

Justices Kennard and George also jumped on Starr’s assertion questioning whether voters saw Proposition 8 as retroactive. Justice George suggested that if  retroactivity was one of the intents of the backers of Prop 8 it should have been stated in the initiative.

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.

Outside the court about a thousand people were gathered watching the proceeding on a Jumbotron screen set up by Marriage Equality USA.

Wednesday night tens of thousands of people took part in candlelight vigils in more than 30 cities throughout the state.

Minter is the legal director of the National Center for Lesbian Rights and Stewart is San Francisco’s chief deputy city attorney. Both successfully fought to overturn California’s ban on same-sex marriage. Separately they also have been involved in a number of other key LGBT legal cases.

“I am deeply honored to receive the Dan Bradley Award with Terry Stewart, who was a true partner in this case,” Minter said in a statement referring to the landmark California same-sex marriage case.

Minter has guided NCLR’s litigation and program work for over 10 years. He has been lead counsel in dozens of groundbreaking legal victories including the California marriage case and Sharon Smith’s unprecedented victory in her wrongful death lawsuit.

Smith’s partner, Diane Whipple, was attacked and killed by two dogs in her apartment building in 2001. The owners of the dogs were later convicted of criminal negligence and Smith filed a civil suit.

It became the first lawsuit in the country in which a same-sex partner was given survivor spousal standing in a wrongful death case.

In 2005, he was one of 18 people to receive the Ford Foundation’s “Leadership for a Changing World” award.

Minter also has received the Anderson Prize Foundation’s Creating Change Award by the National Gay and Lesbian Task Force, the Distinguished National Service Award from GAYLAW, the bar association for LGBT lawyers, Cornell Law School’s Exemplary Public Service Award, the Unity Award from Bay Area Lawyers for Individual Freedom, the Advocacy Award from the San Francisco Bar Association, and the Justice Award from Equality California.

He has authored numerous articles and books on LGBT legal issues, including Transgender Rights (University of Minnesota Press, 2006) and Lesbian, Gay, Bisexual and Transgender Family Law (West Publishing, 2008).

He received his J.D. from Cornell Law School in 1993.

Stewart is a former president of the Bar Association of San Francisco, where she established a mentoring program for at-risk youths.

Stewart also is a lesbian activist who years ago campaigned for acceptance and equal treatment for gay and lesbian lawyers in top San Francisco firms. She is a graduate University of California Berkeley School of Law.

Each year, through its Dan Bradley Award, the NLGLA recognizes individuals who have made a significant contribution to the struggle for lesbian, gay, bisexual and transgender equality.

Minter and Stewart will be honored at the Lavender Law conference in San Francisco in September.