Prop. 8 arguments delivered before California Supreme Court

[Pint0 Xtreme]

LA TIMES

Prop. 8 arguments delivered before California Supreme Court

The California Supreme Court will hear arguments today on whether Proposition 8, the anti-gay-marriage initiative, should be upheld and, if so, whether the marriages of an estimated 18,000 same-sex couples should remain valid.

During a three-hour televised hearing this morning, the San Francisco-based high court will examine whether the November ballot measure was an impermissible constitutional revision or a more limited constitutional amendment.

The court will need to decide the fate of existing same-sex marriages only if it is prepared to uphold Proposition 8, which many legal analysts believe is likely.

The justices' questions to lawyers often reveal how the court is leaning. Legal analysts will be carefully watching Chief Justice Ronald M. George, whose vote often determines whether the conservative or more liberal wing of the court prevails.

The state high court ruled 4 to 3 on May 15 that same-sex couples should be entitled to marry. George wrote the ruling, which was signed by Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno.

Justices Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan voted against overturning the state's previous ban on same-sex marriage, arguing that the matter should be left to voters.

After Proposition 8 passed, only Moreno voted to put the measure on hold pending a decision on the legal challenges. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to the proposition but said she would hear arguments over the validity of existing same-sex marriages.

Some legal analysts believe the vote signaled that Kennard did not believe the revision argument would prevail. Without her vote, the court would be unlikely to muster a majority for overturning the measure.

In addition to arguing that Proposition 8 was an illegal constitutional revision, gay rights lawyers contend that it usurped the authority of the courts.

The hearing, scheduled to start at 9 a.m. and end at noon, will be broadcast live on the California Channel and streamed on its website.

The California Constitution can be revised only during a constitutional convention or if two-thirds of the Legislature puts the proposal before voters and they approve it.

Atty. Gen. Jerry Brown's office will ask the court to overturn the measure on other grounds. Brown has said Proposition 8 must be struck down because it eliminates an inalienable right without compelling reasons.

Both challenges are based on novel legal theories. Gay rights lawyers contend that the measure undermined the Constitution by permitting a simple majority to take away a fundamental right from a constitutionally protected minority that has suffered discrimination.

Legal analysts have said the court is more likely to uphold the existing same-sex marriages than to overturn Proposition 8.

The court received a record number of briefs in the case, with most outside groups calling on the court to overturn the measure.

Opponents of gay marriage have threatened a campaign to remove justices who vote to overturn the measure. If the court upholds the proposition, gay rights activists will consider asking voters to revisit the marriage question in an initiative on the 2010 ballot.

In previous cases, the court has defined a constitutional revision as a change in the fundamental structure or foundational power of state government or one that makes "far-reaching changes in the nature of our basic governmental plan."

Courts in Oregon and Alaska have rejected revision arguments in upholding anti-gay-marriage amendments, but those challenges did not involve marriage rights that the voters repealed.

The California Supreme Court has rejected at least six revision challenges of initiatives, including measures that reinstated the death penalty, changed tax law (Proposition 13) and imposed term limits.

In 1948, the court overturned an initiative as an illegal revision because it made a wide array of changes in the state Constitution. And in 1990, the court struck down an initiative that would have required the courts to apply federal law when determining the rights of criminal defendants.

The relatively few state high court decisions on revision challenges have never directly addressed whether the kind of change made by Proposition 8 could be considered a revision.

Six of the court's justices were appointed by Republican governors. Moreno is the only Democratic appointee.

The oral arguments are happening as we speak. A live feed is available at CNN or at the EQCA website.

[born in shadow]

Here's to hoping that it gets struck down. If it doesn't, I'd hate to think of all the people who would have their marriage invalidated.

But can I get a pre-emptive "Fuck yeah!" in the case this whole mess gets struck down?

Opponents of gay marriage have threatened a campaign to remove justices who vote to overturn the measure. If the court upholds the proposition, gay rights activists will consider asking voters to revisit the marriage question in an initiative on the 2010 ballot.

Well, maybe if us Californians don't get it right THIS time, we can try again in a year

Is anyone watching the Live Feed? I can't hear shit where I am, so I can't really watch it.

-Aaron

[Pint0 Xtreme]

Yes. The hearing is ended. I'm going to see if there is a link somewhere to the entire thing.

[Rogue 9]

Listening to the story on NPR right now.

"Rights this state has so generously provided?" Excuse me? Rights don't exist at the mere whim of the state's largesse, Mr. Starr; the state exists under the authority of the people it serves. The government has no power to simply give and take away civil rights at a whim.

[Pint0 Xtreme]

Unfortunately, it doesn't look good for us.

Justices seem to be leaning in favor of Prop. 8

(03-05) 17:10 PST SAN FRANCISCO -- The California Supreme Court, which last year declared the right of gays and lesbians to marry, appeared ready Thursday to uphold the voters' decision to overrule the court and restore the state's ban on same-sex marriage.

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

George wrote the majority opinion in the court's 4-3 ruling in May striking down California's ban on same-sex marriages - which voters, in turn, reversed in November by approving Proposition 8, a constitutional amendment defining marriage as being only between a man and a woman.

Another member of last year's majority, Justice Joyce Kennard, said the challenge to Prop. 8 brought by advocates of same-sex marriage involved "a completely different issue" from the court's ruling that the marriage laws violated gays' and lesbians' rights to be treated equally and wed the partner of their choice.

"Here we are dealing with the power of the people, the inalienable right, to amend the Constitution," Kennard said. Speaking to a lawyer for same-sex couples, she said those who want to overturn the voters' decision "have the right to go to the people and present an initiative."

Backing for couples

There were some indications of divisions among the justices on the validity of Prop. 8 during the hearing, which lasted more than three hours at the court's San Francisco headquarters. But on a separate issue, all seven appeared to agree that the 18,000 same-sex couples who married before Prop. 8 passed would remain legally wed.

"When the highest court of the state declares that same-sex couples have the right to marry ... how can one deny the validity of those marriages?" asked Justice Marvin Baxter, who dissented from the May ruling throwing out the opposite-sex-only marriage law.

Relying on that ruling, thousands of gays and lesbians "upended their lives, changed their property responsibilities with their spouses," said Justice Ming Chin, another dissenter from that decision. "Is it really fair to throw that out?"

If the justices' questions were any indication, the court will allow Prop. 8 to ban same-sex marriages as of Nov. 5, the day after it passed with 52 percent of the vote. A ruling is due within 90 days.

The initiative, sponsored by conservative religious groups, amended the state Constitution to declare that "only marriage between a man and a woman is valid or recognized in California." That was the language of a previous law that the court struck down last year as a violation of the state Constitution.

Plaintiffs' case

Prop. 8 was challenged by two groups of same-sex couples and by a group of local governments led by San Francisco. They argued that the measure, though drafted as an amendment to the Constitution, violated that document's core principle of equality and exceeded the voters' initiative powers.

"A guarantee of equality that is subject to exceptions by the majority is no guarantee at all," said Therese Stewart, San Francisco's chief deputy city attorney.

Opponents argued that Prop. 8 was not merely a constitutional amendment, which can be circulated as an initiative for voter approval, but was a revision of the Constitution, which requires approval from either two-thirds of the Legislature or delegates to a constitutional convention to reach the ballot.

Taking away rights

Pressed to define the difference, Shannon Minter of the National Center for Lesbian Rights, lawyer for one group of same-sex couples, said that when a majority repeals a fundamental right from a group "historically subject to discrimination," that's a revision.

But George said voters had done just that in ballot measures that restricted school busing for integration and banned affirmative action based on race or sex in government programs.

Kennard said the right to life is at least as fundamental as the right to marry. She noted that the court, after declaring the death penalty unconstitutional in 1972, upheld an initiative that year overturning the ruling.

Minter countered that the death penalty didn't single out one group for different treatment. Justice Carlos Moreno, whose questioning suggested that he might vote to overturn Prop. 8, said the death penalty case "didn't deal with the elimination of constitutional personal rights."

Kenneth Starr, lawyer for Protect Marriage, the sponsor of the ballot measure, argued that Californians have a virtually unlimited power to amend their Constitution.

"Rights are in the power of the people," said Starr, law dean at Pepperdine University and formerly the special prosecutor in the impeachment of President Bill Clinton.

He said past rulings have classified initiatives as constitutional revisions only if they would cause a "far-reaching change in the basic structure of government."

'New to us'

But Justice Kathryn Mickle Werdegar said no previous case had presented the question of whether an initiative could be used to take away fundamental rights. "This is new to us," she said.

Starr also argued that Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation.

The initiative "does not erode any of the bundle of rights that this state has very generously provided," he said, but merely "restores the traditional definition of marriage."

Several justices seemed to agree. Kennard said the voters arguably "took away the label of marriage, but ... left intact most of what this court declared," including unprecedented constitutional protections for gays and lesbians.

Christopher Krueger, a senior assistant in Attorney General Jerry Brown's office, also urged the court to overturn Prop. 8, saying the equality and individual liberty at the heart of last year's ruling were "inalienable rights" that should not be subject to a majority vote.

The court seemed unconvinced. Justice Carol Corrigan said Krueger appeared to be arguing that people may amend the Constitution "unless they do it in a way that this court doesn't like."

Archive video of the hearing.

[Mr Bean]

What happened to the old legal argument that Prop 8 failed because it did not meet the acutal 2/3's required because it was modifing the existing consitution rather than making a new rule. Did not this same court argue the same thing the first time it saw this case?

[Pint0 Xtreme]

What happened to the old legal argument that Prop 8 failed because it did not meet the acutal 2/3's required because it was modifing the existing consitution rather than making a new rule. Did not this same court argue the same thing the first time it saw this case?

No, the same-sex marriage case held last year ruled on the constitutionality of a law that wasn't a constitutional amendment. This is a unprecedented case in California where a constitution amendment was passed to deny the rights to a suspect minority that would have otherwise be protected by the constitution itself. The judges seemed to not have sounded favorably on the argument that prop 8 was a revision rather than an amendment suggesting that a revision must have at least fundamentally altered the structure of the government. Starr seemed to have attempted downplay the significant of Prop 8 suggesting that it was too insignificant to be considered a revision.

[Master of Ossus]

What happened to the old legal argument that Prop 8 failed because it did not meet the acutal 2/3's required because it was modifing the existing consitution rather than making a new rule. Did not this same court argue the same thing the first time it saw this case?

The AG and other respectable lawyers realized pretty early that that was a losing argument for sure, and tried to switch to arguments that were more likely to work. The court's reading into the constitution a protection didn't constitute an explicit statement in that constitution, and so the amendment could be passed by the simple majority instead of the 2/3 majority. Kinda puts gays behind the 8-ball, though, because when this comes up for a vote next time it will unquestionably be an amendment (I'm assuming that SCOCA won't overturn it).

[MoralCompass]

If Prop 8 is an amendment to the state constitution, what grounds would the state Supreme Court have for declaring it void or unconstitutional? Is the Supreme Court in California set up differently than the United States Court? Do they have the power to rule on what should and should not be included in the constitution?

[Rogue 9]

If Prop 8 is an amendment to the state constitution, what grounds would the state Supreme Court have for declaring it void or unconstitutional? Is the Supreme Court in California set up differently than the United States Court? Do they have the power to rule on what should and should not be included in the constitution?

They're ruling on whether or not the method of its passage was constitutional, in essence. California's constitution allows amendment with a simple majority vote, but a revision of the government structure must pass the legislature first. The question before the court is whether or not Proposition 8 constitutes a revision.

[Mr Bean]

If Prop 8 is an amendment to the state constitution, what grounds would the state Supreme Court have for declaring it void or unconstitutional? Is the Supreme Court in California set up differently than the United States Court? Do they have the power to rule on what should and should not be included in the constitution?

The argument could be simply that that Prop 8 modified the existing consitution instead of extending the constiution into new areas.

If the legal argument is that the constiution was modified then it would require a 2/3rds majority and thus Prop 8 failed, because it failed to get 66%+ votes. If it was an extention then it got over 50%+ and thus passed. The argument is not the amendement passing but did it pass with enough.

[Terralthra]

What happened to the old legal argument that Prop 8 failed because it did not meet the acutal 2/3's required because it was modifing the existing consitution rather than making a new rule. Did not this same court argue the same thing the first time it saw this case?

The AG and other respectable lawyers realized pretty early that that was a losing argument for sure, and tried to switch to arguments that were more likely to work. The court's reading into the constitution a protection didn't constitute an explicit statement in that constitution, and so the amendment could be passed by the simple majority instead of the 2/3 majority. Kinda puts gays behind the 8-ball, though, because when this comes up for a vote next time it will unquestionably be an amendment (I'm assuming that SCOCA won't overturn it).

The Yes on 8 camp's argument appears to be that in order to qualify for the 2/3rds requirements, it has to significantly change the structure of the state government. If that is the basis of the distinction, and if taking away rights held to exist within the Constitution doesn't qualify, neither should giving them back.

[CmdrWilkens]

If Prop 8 is an amendment to the state constitution, what grounds would the state Supreme Court have for declaring it void or unconstitutional? Is the Supreme Court in California set up differently than the United States Court? Do they have the power to rule on what should and should not be included in the constitution?

The argument could be simply that that Prop 8 modified the existing consitution instead of extending the constiution into new areas.

If the legal argument is that the constiution was modified then it would require a 2/3rds majority and thus Prop 8 failed, because it failed to get 66%+ votes. If it was an extention then it got over 50%+ and thus passed. The argument is not the amendement passing but did it pass with enough.

Prop 8 never needed to get 66%+ in the POPULAR vote. The 2/3rds margin is for the Legislature only. That is, and the article points out, amendments can go directly to the people (and be decided by majority vote) but revisions must come up in either a constitutional convention or the statelegislaute (where it must pass with 2/3rds) before handing it off to the voters (where it still only requires a simple majority).

[born in shadow]

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

Wait...is he saying "Our system is fucked up, we can't change it" or is it just me? I mean...seriously? "Oh, the majority voted on it! Nothing can be done!"

I'd think that if you take away a right you extend to everyone else, that'd be a rather clear bit of bull-fuckery.

-Aaron

[The Spartan]

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

Why does this remind me of something out of the old civil rights era or earlier?

Similar to keeping blacks down under the old "separate but equal" laws because the white majority wanted it that way?

[Rahvin]

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

Why does this remind me of something out of the old civil rights era or earlier?

Similar to keeping blacks down under the old "separate but equal" laws because the white majority wanted it that way?

Not similar - identical.

Except this time the bigots went for a Constitutional amendment so that it can't be challenged on a constitutional basis any more.

[The Spartan]

Not similar - identical.

Except this time the bigots went for a Constitutional amendment so that it can't be challenged on a constitutional basis any more.

They could always take it to a court higher than the California Supreme Court, but while the Federal Appellate courts might agree with them, I'm doubtful, at best, that the US Supreme Court will uphold their rights.

[Master of Ossus]

Not similar - identical.

Except this time the bigots went for a Constitutional amendment so that it can't be challenged on a constitutional basis any more.

They could always take it to a court higher than the California Supreme Court, but while the Federal Appellate courts might agree with them, I'm doubtful, at best, that the US Supreme Court will uphold their rights.

No, they can't take it to a Federal court. The California Supreme Court is the highest authority on the laws of California, and that includes the California Constitution. The only way to use the Federal courts to handle this is to claim that the Federal constitution protects gay marriage.

Wait...is he saying "Our system is fucked up, we can't change it" or is it just me? I mean...seriously? "Oh, the majority voted on it! Nothing can be done!"

Except that he's right: nothing can be done. The problem with having a government based around a constitution is that the government has to live within the limits of the constitution.

[Guardsman Bass]

What you'd really need on the Federal level would be a repeal of the anti-gay marriage laws, plus a law protecting the right of gay marriage. Then, when the inevitable court challenge comes, you could claim that the Federal law supercedes the state law due to the Supremacy Clause.

Or, of course, you could simply do what the anti-gay marriage and anti-abortion groups do, and that is place initiative after initiative repealing the ban, year after year, improving on your mistakes and working your PR, until the initiative finally passes. It probably will eventually pass, anyways; whereas the 2000 initiative banning gay marriage drew in more than 60% support, the 2008 initiative drew much less.

[Master of Ossus]

What you'd really need on the Federal level would be a repeal of the anti-gay marriage laws, plus a law protecting the right of gay marriage. Then, when the inevitable court challenge comes, you could claim that the Federal law supercedes the state law due to the Supremacy Clause.

Uh... sort of. You'd actually need a finding that it was a constitutionally protected right. From there, you could use the 14th Amendment to require states to enforce it under Equal Protection. A federal law is highly unlikely because marriage, IIRC, is governed by the states in the first place.

Or, of course, you could simply do what the anti-gay marriage and anti-abortion groups do, and that is place initiative after initiative repealing the ban, year after year, improving on your mistakes and working your PR, until the initiative finally passes. It probably will eventually pass, anyways; whereas the 2000 initiative banning gay marriage drew in more than 60% support, the 2008 initiative drew much less.

I've said this before, on the Board, but if Gavin Newsome hadn't acted like such a douchebag about the original decision granting the right of gay marriage, then Prop 8 never would have passed. As it was it was close. It might even pass next time if they can get Newsome to shut up.

[CaptainChewbacca]

The only way to ever get it really settled is with an amendment to the US constitution stating that marriage is a right guaranteed by the federal government to all persons regardless of race, gender, or sexual orientation. That's the only way you could clearly and unequivocally overturn state constitutional restrictions on marriage.

[CmdrWilkens]

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"

Wait...is he saying "Our system is fucked up, we can't change it" or is it just me? I mean...seriously? "Oh, the majority voted on it! Nothing can be done!"

I'd think that if you take away a right you extend to everyone else, that'd be a rather clear bit of bull-fuckery.

-Aaron

The point he was making, and it falls within a very broad point about the limits of judicial power, is that the courts can only rule on the law as it is written and applied. In other words, and I'm taking a very broad stroke of one of the major theories of jurisprudence, the courts do not have the power to do anything other than rule on the validity of assertions as they relate to the statutes and law which has already been laid down. As California has a series of precedents for denying minorities rights through this method one would have to demonstrate that the logic used in those cases was flawed OR that something has changed in terms of the laws in force since the last precedent. It is a viewpoint that relates to an idea on seperation of powers whereby the people's recourse if they feel the process is flawed is to elect officials who will amend the process NOT to seek the court's resolution in determining a flaw in the process.

[Samuel]

The only way to ever get it really settled is with an amendment to the US constitution stating that marriage is a right guaranteed by the federal government to all persons regardless of race, gender, or sexual orientation. That's the only way you could clearly and unequivocally overturn state constitutional restrictions on marriage.

No, we challenge it on the grounds of being a total violation of artile 4, section 1 of the US constitution- full faith and credit.

[The Yosemite Bear]

California: Where it takes less votes to change the constitution, then it does to pass a budget.

[CaptainChewbacca]

California: Where it takes less votes to change the constitution, then it does to pass a budget.

Which is just ONE of the reasons why my state is buried in crippling debt.