State high court shows interest in anti-Prop. 8 suits

[Newsjock]

Source: San Francisco Chronicle

SAN FRANCISCO -- The California Supreme Court has asked state Attorney General Jerry Brown to reply by Monday to lawsuits challenging the voter-approved ban on same-sex marriage - a sign that the justices are taking the cases seriously and will not dispose of them quickly.

... The filing the court requested from Brown's office will not address the ballot measure's validity, but will focus instead on the initial questions of whether the justices should accept the suits for review - and, if so, whether they should suspend Prop. 8 while they decide the case, said the state's lawyer, Christopher Krueger, a senior assistant attorney general. Suspending Prop. 8 would allow same-sex marriages to resume.

"I think it's fair to infer that the court is looking at these (cases) very carefully," Krueger said. Usually, he said, when plaintiffs ask the state's high court to take up their case directly without first filing in a lower court, the justices dismiss the suit without asking the other side for a reply.

... On Thursday, the conservative Pacific Justice Institute submitted a letter arguing that the court lacks authority to issue a stay that would suspend a voter-approved state constitutional amendment.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/13/BAMU1449RR.DTL&type=politics&tsp=1

[Chan790]

1. PJI just screwed themselves...

I've never seen a court ultimately side with anybody whose position was to tell the court they couldn't do something. The court is the arbiter of its' jurisdiction. (Whether or not a court should be the arbiter of its' jurisdiction is another conversation.)

[Tat]

4. It happens a lot.

In fact, a lot of test cases are lost at the lower levels because the courts can't side with the other side because of the ruling of higher courts. The Supreme Court of California might well take the case without the necessary losses at the lower courts because of time constraints and because they are the final arbiters on the matter. Much of the objections to prop 8 is that it's too sweeping to qualify as a ballot measure without also getting a vote in Sacramento.

Telling a court that it isn't their jurisdiction is perfectly acceptable and works when the court finds that it really isn't their jurisdiction. California Supreme Court jurisdiction clearly is everywhere in California. And if for some reason it's found legal the 14th amendment suits might end up going up to the 9th circuit and getting struck down in general which might very well legalize gay marriage on the west coast. Eventually something is going to have to move up the line to knock out the laws. Then it's clear that one of the states would appeal and it would get it's day in the Supreme Court to go the way of Loving v. Virgina.

[t0dd]

2. I'm slightly confused..

the judges are still deciding whether or not to hear the suits at all? If Jerry Brown intends to defend Prop 8, won't he recommend to the justices that the suits should not be heard at all? Is it unusual for the justices to ask the opposition of a suit for a reply?

[Guaranteed]

8. Despite Brown's representation of the State in this case, whether

the Court should hear the case is not such a simple question from the point of view of the Attorney General.

I think the court is deliberately putting that question to him early in the case understanding that as Attorney General he can't make a very strong argument against the Court's authority.

They're getting that particular argument out of the way so that the pro-Prop 8'ers can't make it later.

This is the route to invalidating the proposition- acknowledgment of authority first and foremost.

[Name removed]

3. Deleted message

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[Newsjock]

5. Welcome to DU, Governor Palin

Enjoy your stay.

[ksimons]

6. that was a mighty short stay! (g)

[David__77]

7. It's PISSING me off that county clerk's have suspended issuing licenses prior to vote certification!

No one told them to stop issuing licenses. There IS no amendment. The vote hasn't been certified.