California Supreme Court rules on Prop 8 on Tuesday

[Pint0 Xtreme]

Tuesday will be a very sad day.

State high court to rule Tuesday on Prop. 8

(05-22) 10:40 PDT SAN FRANCISCO -- The state Supreme Court will rule Tuesday on a challenge to Proposition 8, the ballot measure that reinstated California's ban on same-sex marriage.

The court announced the impending decision today in lawsuits by same-sex couples and local governments, led by San Francisco, seeking to overturn the measure that 52 percent of California voters approved in November. If the court upholds the measure, it must also decide how the proposition affects the marriages of about 18,000 same-sex couples who wed before the Nov. 4 election.

Prop. 8 amended the state Constitution to declare that only marriage between a man and a woman is valid or recognized in California. It followed the court's 4-3 ruling in May 2008 that declared the previous marriage law violated the rights of gays and lesbians to marry the person of their choice and discriminated on the basis of sexual orientation.

The ruling made California the second state, after Massachusetts, to legalize same-sex marriage. Since then, the Supreme Courts of Iowa and Connecticut have issued similar rulings, and legislatures in Vermont and Maine have also authorized same-sex weddings, although the Maine law faces a likely voter challenge. Another such law is pending in New Hampshire.

Plaintiffs in the California lawsuits argue that Prop. 8 made such fundamental changes to the rights guaranteed by the state Constitution that it amounted to a constitutional revision, not merely an amendment. A revision requires approval by two-thirds of the Legislature or by delegates to a new state constitutional convention to reach the ballot.

Attorney General Jerry Brown, who ordinarily defends state laws in the courts, joined the opponents of Prop. 8 and argued that the voters lack the power to eliminate "inalienable rights."

Supporters of the measure argued that the voters have the right to amend their Constitution and are entitled to deference from the courts. Most of the justices appeared to agree at a hearing in March, and gay-rights advocates are already making tentative plans to return to the ballot in 2010 or 2012 if the court upholds Prop. 8.

At the same hearing, the justices' questions seemed to indicate that the court was likely to uphold the 18,000 marriages that were conducted between mid-June 2008, when their ruling took effect, and the passage of Prop. 8.

Now we need to channel this new pain and anger for the 2010 or 2012 ballot initiative campaign.

[Mr Bean]

Funny enough they delayed the announcement till today since yesterday was the last major CA gay rights ruling when the Junk food defense won Dan White a lesser sentence for the murder of Harvey Milk and the resulting riots that day.

Today would be the day after those famous riots, here's hoping for justice, and failing that calm, rioters always burn down their own first.

[Pint0 Xtreme]

It's entirely possible that they waited this long to issue their ruling to avoid coinciding with the significance of yesterday. Had they issued their ruling yesterday or even a few days before, it would have looked a lot uglier in San Francisco than it will next week.

[General Zod]

Supporters of the measure argued that the voters have the right to amend their Constitution and are entitled to deference from the courts. Most of the justices appeared to agree at a hearing in March, and gay-rights advocates are already making tentative plans to return to the ballot in 2010 or 2012 if the court upholds Prop. 8.

Wait, what? Now they're claiming it's a constitution change? What's going on here? Not too long ago the typical defense in favor of Prop 8 was that it wasn't changing their constitution, it was just reaffirming something it already said.

[Pint0 Xtreme]

Supporters of the measure argued that the voters have the right to amend their Constitution and are entitled to deference from the courts. Most of the justices appeared to agree at a hearing in March, and gay-rights advocates are already making tentative plans to return to the ballot in 2010 or 2012 if the court upholds Prop. 8.

Wait, what? Now they're claiming it's a constitution change? What's going on here? Not too long ago the typical defense in favor of Prop 8 was that it wasn't changing their constitution, it was just reaffirming something it already said.

An amendment to the constitution is changing it. The question is how big of a change it is (amendment vs. revision). During the hearing, it seemed the justices were inclined to believe that a revision constitutes a fundamental change in the system of government and the gay rights group had a fairly cold reception when they tried to convince the justices that eliminating minority rights should be considered such a change.

[The Duchess of Zeon]

From a legal perspective, though, that's a strong counterargument. After all, our system of government functioned mechanistically just fine when blacks were slaves; it will continue to function when gays don't have full rights, either. If a revision really, legitimatelly only constitutes changing the system of government, than the supporters of prop 8 are unfortunately on fairly strong ground.

[Pint0 Xtreme]

From a legal perspective, though, that's a strong counterargument. After all, our system of government functioned mechanistically just fine when blacks were slaves; it will continue to function when gays don't have full rights, either. If a revision really, legitimatelly only constitutes changing the system of government, than the supporters of prop 8 are unfortunately on fairly strong ground.

Really, the best hope we have is for the decision to not be unanimous. A split vote would be a lot less devastating but would still generate enough anger to carry on for next year's campaign.

[CmdrWilkens]

From a legal perspective, though, that's a strong counterargument. After all, our system of government functioned mechanistically just fine when blacks were slaves; it will continue to function when gays don't have full rights, either. If a revision really, legitimatelly only constitutes changing the system of government, than the supporters of prop 8 are unfortunately on fairly strong ground.

Really, the best hope we have is for the decision to not be unanimous. A split vote would be a lot less devastating but would still generate enough anger to carry on for next year's campaign.

The split or not vote makes virtually no difference. The ruling is not about the root issue of the rights of homosexuals to marry but rather about whether or not the appropriate process was followed to deny them the right. The justices have already, if in a naturally divided way, indicated that they hold marriage to be a fundamental right which should be afforded to all persons however that isn't what this case is about. If every single jusitce votes that this was an amendment not a revision it holds no relevance to the larger debate about overturning Prop 8 save in the enthusiasm it generates. Under those circumstances I would think a unanimous affirmation of Prop 8s validity woudl actually be best so long as two things go with it:

a) The 18,000 marriages held between the original decision and the vote are upheld as valid AND
b) You get at least one concurring opinion which points out that while marraige IS a fundamental right the action before them is one about constitutional procedure and not rights.

[Cecelia5578]

It's entirely possible that they waited this long to issue their ruling to avoid coinciding with the significance of yesterday. Had they issued their ruling yesterday or even a few days before, it would have looked a lot uglier in San Francisco than it will next week.

Really? The vibe I'm getting, as a little tiny peon here in the peninsula/south bay, is that the queer community is pretty much resigned to the fact that Prop 8 will be upheld. I anticipate protests if that is the case, but hardly violence a'la what happened with White.

[Pint0 Xtreme]

It's entirely possible that they waited this long to issue their ruling to avoid coinciding with the significance of yesterday. Had they issued their ruling yesterday or even a few days before, it would have looked a lot uglier in San Francisco than it will next week.

Really? The vibe I'm getting, as a little tiny peon here in the peninsula/south bay, is that the queer community is pretty much resigned to the fact that Prop 8 will be upheld. I anticipate protests if that is the case, but hardly violence a'la what happened with White.

By Peninsula/South Bay, are you talking about Palos Verdes in LA County? I'd imagine the LGBT community there isn't quite as active or vocal as the Castro community in San Francisco.

[Pint0 Xtreme]

The split or not vote makes virtually no difference. The ruling is not about the root issue of the rights of homosexuals to marry but rather about whether or not the appropriate process was followed to deny them the right. The justices have already, if in a naturally divided way, indicated that they hold marriage to be a fundamental right which should be afforded to all persons however that isn't what this case is about. If every single jusitce votes that this was an amendment not a revision it holds no relevance to the larger debate about overturning Prop 8 save in the enthusiasm it generates. Under those circumstances I would think a unanimous affirmation of Prop 8s validity woudl actually be best so long as two things go with it:

a) The 18,000 marriages held between the original decision and the vote are upheld as valid AND
b) You get at least one concurring opinion which points out that while marraige IS a fundamental right the action before them is one about constitutional procedure and not rights.

It seemed as if one of the arguments to overturn Prop 8 was about rights. Attorney General Jerry Brown argued that the right to marry was fundamental and therefore cannot be removed by majority vote. While one argument was about procedure, the other seemed to be about the precedence of rights. Admittedly, none of them appeared to have gained any traction based on what I saw in the oral hearing.

[The Yosemite Bear]

Too bad someone can't just constantly hold up Loving vs. Virginia and pound it over people's heads until they figure out exactly what the precident we are citing is.

[CmdrWilkens]

It seemed as if one of the arguments to overturn Prop 8 was about rights. Attorney General Jerry Brown argued that the right to marry was fundamental and therefore cannot be removed by majority vote. While one argument was about procedure, the other seemed to be about the precedence of rights. Admittedly, none of them appeared to have gained any traction based on what I saw in the oral hearing.

Yes and no, the argument that Brown was making, and which does appear to be getting little play, is that because marriage is a "fundamental right" then any action which affects it qualifies as a revision and not an amendment. The point is that the justices don't HAVE to rule on whether marriage is a fundamental right or not, instead (and the hints seem to lead in this direction) they could simply rule that a revision consists only in changes to the structure of government and Prop 8 does not change the structure of the government and thus qualifies as an amendment (in turn making it legal). All of this sidesteps whether or not marriage is a fundamental right though the earlier ruling which allowed for gay marriage certainly would suggest that a majority hodl that it IS a fundamental right.

The rather long winded point of this is that a unanimous decision based solely on the question of revision vs amendment doesn't change the legal basis for any future challenge and if, as everyone suspects, they rule in favor of Prop 8 then a unanimous decision is more likely to arouse passion to defeat it. Again the critical point is that the only matter which can really change the tides is if the justices void the marriages already performed and nobody seems to think they will do so.

[The Yosemite Bear]

I do believe that I can cite a precident, and sicne national law takes precidence over federal law, including but not limited to the 14th amendment.

“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

So Mormons, CA supreme court, and various bigotted fundy assholes what am I missing?

Oh and Mildred Loving has come out in favour of legalizing same sex marriages.

[Cecelia5578]

It's entirely possible that they waited this long to issue their ruling to avoid coinciding with the significance of yesterday. Had they issued their ruling yesterday or even a few days before, it would have looked a lot uglier in San Francisco than it will next week.

Really? The vibe I'm getting, as a little tiny peon here in the peninsula/south bay, is that the queer community is pretty much resigned to the fact that Prop 8 will be upheld. I anticipate protests if that is the case, but hardly violence a'la what happened with White.

By Peninsula/South Bay, are you talking about Palos Verdes in LA County? I'd imagine the LGBT community there isn't quite as active or vocal as the Castro community in San Francisco.

Like, San Mateo/Santa Clara County in the SF Bay Area. From my experiences trying to make it to the city for various queer community stuff. I expect stuff to happen Tuesday regardless of the decision, but a repeat of the White Night Riots is not one of them.

[CmdrWilkens]

I do believe that I can cite a precident, and sicne national law takes precidence over federal law, including but not limited to the 14th amendment.

“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

So Mormons, CA supreme court, and various bigotted fundy assholes what am I missing?

The problem, and EqualityCalifornia is making a smart move here, is that any issue which involves overturning part of the California Constitution (which Prop 8 now is unless the judges somehow rule oddly) by reference to the 14th amendment immediately makes the issue one of Federal jurisdiction. Now while the 9th Circuit is generally pretty liberal and may very well hold that the 14th Amednment makes marriage discrimination based on sexual orientation illegal the issue then goes to the Supreme Court.

Now one could hope a fair minded argument which takes your above precedent along with a host of other viable points about previous discrimination in marriage laws being struck down woudl be enough to get the Court to rule Prop 8 and its ilk across the nation illegal. One could hope for that but I don't think any realist right now would believe that with Roberts at its head and the Alito, Scalia, and Thomas pushing Kennedy
you could get such a ruling through. So long as all of the decisions rendered do not cite the 14th or otherwise make reference to federal law then the Supreme Court cannot get involved as the various State Supreme Courts are the final word in matters of local jurisdiction.

I think most folks, on both sides, simply don't want to chance which way the inevitable 5-4 decision woudl fall on a case that actually made it all the way to the Court so arguments are almsot universally confined to matters of State jurisdiction...which means ignoring the 14th.