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Calif. Supreme Court Will Hear Challenge to Prop. 8

The California supreme court announced Wednesday that it will review legal challenges to Proposition 8, which passed by a narrow margin on November 4, constitutionally banning same-sex marriage in the state.


The California supreme court announced Wednesday that it will review legal challenges to Proposition 8, which passed by a narrow margin on November 4, constitutionally banning same-sex marriage in the state.

But don't look for any resolution in the immediate future: The high court scheduled a hearing for March, asking litigants on both sides for more written arguments in the interim.

The National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal filed a suit challenging the validity of Prop. 8 on November 5, before Equality California, the official group that worked to defeat Prop. 8, had formally conceded.

The court will be asked to answer the following questions:

"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?"

"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?"

According to the Los Angeles Times, it's impossible to see how the court is currently leaning on the matter. The same court overturned a ban on same-sex marriage last May in a 4-3 decision. The one thing that's certain is that it could have thrown out the challenge but chose not to.

The court denied an immediate stay of the decision -- which would have permitted same-sex couples to marry until a final court decision was rendered -- but agreed to set an expedited briefing schedule on the matter.

The California supreme court has upheld at least six ballot initiatives and rejected only two, according to the Times. In 1966 the court struck down a ballot measure that would have allowed racial discrimination in housing. The court also overturned Proposition 187, an anti-immigration initiative passed by voters in 1994. (Ross von Metzke and Neal Broverman, The Advocate)

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Reader Comments
  • Name: Abigail
    Date posted: 11/25/2008 4:13:00 PM
    Hometown: Los Angeles

    Comment:

    My partner and I were married in San Francisco. It was the most thrilling day of my life. Saying vows in front of a judge was huge for me. It was a real marriage ceremony yet we got a simple letter in the mail invalidating it. I still have our marriage certificate and pictures from that day. I was also able to change my last name to match that of my partner's and childrens' last name. I was legally married by a judge and no matter what proposition is voted for, I know I got married. I am a married woman and that is the bottom line. The majority cannot tell a minority they are second class citizens and create inequality. It's wrong and most judges know it is wrong. Civil rights belong to everyone. Prop.22, Prop 8 and any others that come along will continue to be challenged until all GLBT persons have the same civil rights as others.

  • Name: Tom Backman
    Date posted: 11/24/2008 12:48:00 AM
    Hometown: St. George

    Comment:

    Tammi, Go ahead and grow old with your partner, but what you evidently don't understand is that I do not want you to have a family with your lady "that will be recognized and respected the same as other couples." That is the point; if your family is recognized by the little ones in your life and mine as the "same", the little ones will be enticed that it is acceptable and OK, which it is neither by me and over half of the other folks. Please don't force this upon us as an acceptable lifestyle for our kids. Life is tough enough. Tom

  • Name: David Lee Frater
    Date posted: 11/23/2008 10:58:00 AM
    Hometown: Los Angeles, California

    Comment:

    This is not a comment, this is a question. I am a gay man living in Los Angeles, I have a dear friend, another man, whom I wish to marry before Proposition 8 takes effect as law. I saw on a newscast, that some same sex marriages are still being allowed and that a deadline has been set on when this will be stopped. Does anyone know this date? What date will same sex marriages no longer be allowed in California? Please, sometime tell me, is there any time left at all? Or, have we already passed that deadline? Sincerely, David Lee Frater (213) 481-3899

  • Name: mark
    Date posted: 11/20/2008 9:56:00 PM
    Hometown: rochester

    Comment:

    In talking about same sex marriage as a civil right I think we need to remind Americans of the language the Supreme Court used in its 1967 Loving vs Virginia decision (striking down laws prohibiting mixed race marriage): "...marriage is a basic civil right of man...". Similar language citing marriage as a basic civil right has appeared in several Supreme Court cases since (an example was in the decision upholding the right of federal prisoners to marry). mark, rochester, mn

  • Name: Tammy Magill
    Date posted: 11/20/2008 7:02:00 PM
    Hometown: Long Beach

    Comment:

    The Supreme Court has the duty and obligation to protect the rights of all minority groups so that they cannot be discriminated against by the majority. I am trying to keep my hopes up that the court will rule in our favor. The one thing that does look good for same-sex couples is that we weren't completely defeated. The polls were almost 50/50 which means that we may be able to defeat prop 8 in the future by the vote. I just want the court to see that same-sex couples want the same things as heterosexual couples, we want a partner to grow old with and the right to have a family that is legally recognized. I want to have a family with my lady that will be recognized and respected the same as other couples, nothing more and nothing less. I will not settle for a domestic partnership because I am not a second class citizen! My family deserves more and I will march and rally until my rights are restored.

  • Name: Shawn Williams
    Date posted: 11/20/2008 5:12:00 PM
    Hometown: Fort Myers, FL

    Comment:

    I am glad to see the court taking this issue up. I agree with Melissa Etheridge that since we are considered a "second class" of citizen, we should not have to pay taxes.

  • Name: Jim
    Date posted: 11/20/2008 2:59:00 PM
    Hometown: Dallas

    Comment:

    The right to marry is among a set of basic human rights "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."

  • Name: Rich
    Date posted: 11/20/2008 1:26:00 PM
    Hometown: San Diego

    Comment:

    Justice Kennard has not indicated whether she is in favor of or opposed. She cited that she believes the Court should "dismiss without prejudice" (cases may be re-filed in the future) until the Court determines the validity of marriages already performed. She wrote a concurring opinion in May addressing that she believed the CaSC erred by annulling the marriages performed by San Francisco in 2004. In her opinion, the marriages MAY have been valid since the Court had not yet ruled whether or not the right to equal marriage existed, so the Court should have waited on whether THOSE marriages were valid until the question was settled. However, she also stated that excluding same-sex couples from marriage is dependent upon whether there is a CONSTITUTIONAL restriction to marriage. Prop 8 amended the Constitution to create restriction, but AFTER the Constitution already stated that marriage must be applied equally (in May) - this may be contradictory. This case is unprecedented.

  • Name: HERMAN
    Date posted: 11/20/2008 1:10:00 PM
    Hometown: los angeles

    Comment:

    Hi!,I"m hispanic..and gay and I remember that prop 187 back in '94.I remember how the latin community fought against it and how It was past for the voter by larger number than prop 8.You know the rest about 187...now I'm fighting again against prop 8 and as hispanic I really feel bad that many hispanics voted in favor of it. I have faith that we will GET BACK the right to get marriage.

  • Name: Alex Gill
    Date posted: 11/20/2008 12:10:00 PM
    Hometown: Aliso Viejo

    Comment:

    "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" There is a difference here... statutory does not mean constitutional amendments. That is quite different between the two....The justices' meant statutory law NOT constitutional amendments.



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