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.

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)

Keywords: California marriage Prop 8

Related stories from Advocate.com

2009-07-02: The Faces of Federal Prop. 8
2009-06-20: The Great Undoing?
2009-06-03: The Upside of Prop. 8
2009-05-29: Pastors: No Marriage for Straight People
2009-05-28: Aftermath: Day of Decision

Reader Comments

These comments are reproduced as written by visitors to this Web site. They have not been edited for content, grammar, or spelling. The viewpoints appearing here are those of the writer, and do not necessarily reflect the opinion or views of advocate.com, The Advocate, or its affiliates.

Name: Chris
Date posted: 2008-11-25 8:38 PM
Hometown: Berlin, Germany

Comment:

@ Tom Backman It does not really matter what YOU want. There are still people in your country who do not want black and white heterosexual couples to marry - they don't matter as well today, do they? And isn't that a great thing...?! Don't answer maybe we don't really want to hear you emvarass yourself any further... Passing such legislation brings the United States of America aka the "home of the free" in the same category as nations as Russia, Albania or Moldova and behind nations such as Nepal. Given the mind-set of people who voted Yes and "do not want this or that" - that rightly is where you belong then. Think about it and the state of democracy in the US then... But sooner or later America always came to it's senses. Sometimes it took 8 years under idiocrisy, sometimes a far longer fight...FIGHT ON GUYS! You have my wholehearted support! Stop those Rightwing nutcases ruining your country and democracy altogether!

Name: Abigail
Date posted: 2008-11-25 4:13 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: Tammy Magill
Date posted: 2008-11-20 7:02 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: Rich
Date posted: 2008-11-20 1:26 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: Dave
Date posted: 2008-11-19 10:16 PM
Hometown: Moreno Valley, CA

Comment:

I am beginning to have great faith the Ca Supreme Court will side with us. Two reasons. 1. They could have decided not to hear the cases without comment. 2. In their decision they said the following. The ruling said 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 This says to me that if they decided on the side of H8, they would be overturning themselves, something Supreme Courts, expecially on such an issue, are loathe to do. And their decision is so fresh it would be an embarassment to them to do so. More, some fundies have threatened a recall if they do overturn...another thing that bristles the court.

Name: Mark
Date posted: 2008-11-19 7:46 PM
Hometown: San Diego

Comment:

HEY FOOL, J. KENNARD is a LADY and the statement does appear to say SHE will want to hear arguments on the marriages already done in California. They have put themselves in a strange position. By naming us a Suspect Class and saying we need to be protected under the Equal Protection act, they appear to have locked all of them into overthrowing Prop 8. If they don't, I believe they open themselves up to a US Supreme Court case, which would say that they went against their own constitution and its laws for amendments and revisions. I don't think they would want to go there, or be seen as going backward in their decisions. I am confident that they will overturn Prop 8

Name: Dave Marsh
Date posted: 2008-11-19 7:27 PM
Hometown: Sacramento, CA

Comment:

I think it would be VERY unwise to do anything to force this issue to the US Supreme Court. I believe there are a solid four judges against us (Roberts, Alito, Scalia, Thomas). It's easy for a religious conservative to argue that we DO have the equal right to marry, the same as anyone else to a member of the opposite sex. That fatuous argument only requires that the believer accept that gays are actually hedonist heterosexuals. I actually think we have a good chance of winning this in California, after reading the CA Supreme Court's ruling last May. It IS a shame that the court wouldn't stay the enactment of Prop 8, but they probably want to give both sides their best shot at convincing them, and don't want to prejudice the case to the public who, after all, DID vote to strip a minority of a fundamental right.

Name: Dave Marsh
Date posted: 2008-11-19 7:23 PM
Hometown: Sacramento, CA

Comment:

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