California Supremes to hear challenge of Prop 8

[nadinbrzezinski]

breaking on MSNBC

And so it begins

I am betting this will end in the USSC within two years

[xchrom]

1. recommend

[FreeState]

2. SFGate article link

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/19/BAJC147QAJ.DTL


11-19) 13:57 PST SAN FRANCISCO -- The state Supreme Court plunged back into the same-sex marriage wars today, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.

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At the urging of both sponsors and opponents of Proposition 8, the justices granted review of lawsuits challenging the Nov. 4 initiative. Approved by 52 percent of the voters, Prop. 8 restored the definition of marriage - a union of a man and a woman - that the court had overturned May 15.

In today's order, the justices let Prop. 8 remain in effect, denying a stay that would have allowed county clerks to resume issuing marriage licenses to same-sex couples until the case was decided. No hearing has been scheduled.

The court also said it would consider the validity of 18,000 same-sex marriages performed between mid-June, when its ruling took effect, and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.

[LeftHander]

41. ex post facto

Rights once legal cannot be undone retroactively by a new law.

[Geoff R. Casavant]

3. I don't see USSC at all.

The issue is strictly one concerning California's state constitution, over which the Federal courts have no jurisdiction. And sexual orientation has never been a protected class under the Federal constitution.

[nadinbrzezinski]

7. 14 Amendment

that is where this will go

And if not 8, similar laws across the country

[greeneyedboy]

36. this particular case will not end up in the U.S. Supreme Court

Eventually, marriage equality will become the law of the land nationwide after
1) DOMA is overturned;
2) we have a somewhat improved Supreme Court;
3) a test case is brought forward of a couple who married in MA or CT (or NY or CA or elsewhere) but was denied a pension, immigration card, or other key federal benefits; and
4) the Supreme Court remembers the Constitution, and the 14th amendment in particular.

The courts that ruled on Romer v. Evans and Lawrence v. Texas were only slightly saner than our current one, so we just need one of the nutbags to leave, plus good appointments from Obama when the time comes.

[The Doctor.]

9. Really, the point is that there are no "protected classes"...

There are laws that ensure equality.

As the US Constitution has established that all people are equal, it's simply unconstitutional to prevent two adults from marrying. Consider also the churches' role in marriage, and it's a pretty open and shut case.

There will be four dissenting opinions out of the SCOTUS regardless.

[AntiFascist]

11. There are suspect classifications...

you should read the legal briefs to be clear on this. Gays and lesbians are now considered a protected class on par with racial minorities and women, but only in California. Even certain churchs are now concerned about their religious freedoms.

There are also suspect classifications under the US Constitution, but I don't believe the Federal Courts have ever ruled that sexual orientation is considered one.

[TheWraith]

14. The lack of a "suspect class" status is easy to argue against.

Left handed people are also not a suspect class. Does that mean that the Equal Protection clause doesn't protect against a law saying left handed people can't marry other left handed people?

The text of the EPC is pretty unambiguous.

[AntiFascist]

16. The argument would be over the definition of marriage...

and whether defining marriage a certain way discriminates against a certain class of people who are afforded strict scrutiny. One could also argue that defining marriage as being between 2 people discriminates against polygamists, but polygamists are specifically not a suspect classification in California.

[Unvanguard]

18. There are different tests.

The Equal Protection Clause applies to all groups. But because left-handed people are not a suspect class, laws that discriminate against them are subject to the most lenient test, what is called the "rational basis" test: the government has to show that there is some rational connection between the policy and a legitimate government end.

A law or policy that discriminates against a suspect class, on the other hand, has to pass what is called "strict scrutiny": it has to be shown to serve a compelling government interest, and has to be narrowly tailored to serve that interest (that is to say, it has to be the least rights-violating way to achieve the objective.)

[TheWraith]

39. Even the most lenient standard is hard to fulfill for Prop 8.

Show me where the legitimate government interest is in Prop 8. What specific goals and purposes does it accomplish related to the improved governance of the state of California?

[Unvanguard]

40. Agreed. And, incidentally, the MA Supreme Court ruled in exactly that way.

But the question is not "What do you and I think?", it is "What will the justices on the Supreme Court think?", and when sexual orientation is a suspect class the chances they will rule in favor of same-sex marriage are substantially stronger.

[AntiFascist]

42. Can you describe the legal argument they would use?

If marriage is also considered a "Fundamental Right" what logic would they use to differentiate sexual orientation as a suspect class? Would they allow separate but "equal" status since domestic partnerships afford them similar types of relationships?

On edit: I guess what I'm trying to say can be worded more clearly this way: if Prop. 8 is allowed to stand then it seems like it would leave a contradiction based on the CA marriage ruling. Is marriage a Fundamental Right or is it a special right only to be enjoyed by heterosexuals (or gays and lesbians who may choose to be in less than satisfying relationships with the opposite sex)?

[Creideiki]

34. Well, 3 dissenting opinions

Likely the sockpuppet will sign to whatever his puppeteer says to sign.

[AntiFascist]

10. Exactly n/t

[TheWraith]

13. Actually state constitutions exist under the umbrella of the US constitution.

The question is grounds. The Supremes would have to determine that the Calif amendment violated some portion of the US constitution... probably under Equal Protection Clause grounds.

[Ms. Toad]

17. Not if the complaint is drafted

as a State constitutional matter. All the complaints I have read (and the summaries of the ones I haven't read) are very carefully crafted to be limited to a state question. The losing side cannot appeal to the US Supreme Court.

[AntiFascist]

19. This could be taken to the Federal Supreme Court...

but, the Calfornia Constitution has its own Equal Protection Clause so there is no need to do this. Also, certain classifications, such as women, are afforded more narrow scrutiny under the California Constitution. Also, considering the conservative bias of the Federal Supreme Court, this would not be a good decision right now.

[Unvanguard]

20. Yes, they do. But this challenge to Prop. 8 is about the revision/amendment distinction.

Which is particular to the California Constitution.

And they wouldn't challenge it on federal equal protection grounds because they're afraid they'll lose, which will set precedent against them.

[RetiredTrotskyite]

4. Here's Hoping....

that the California Supreme Court will do what is right and strike down this blatant attempt to legalise bigotry under the guise of "protecting marriage".

[FreeState]

5. LA Times article

The California Supreme Court today denied requests to stay the enforcement or implementation of Proposition 8, and at the same time agreed to decide several issues arising out of the passage of Proposition 8. The court’s order, issued in the first three cases that had been filed directly in the state’s highest court challenging the validity of Proposition 8, directed the parties to brief and argue three issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution? (3) 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?

http://latimesblogs.latimes.com/lanow/2008/11/the-californi-1.html

[Ian David]

6. If they decide it on the basis of the California State Constitution, it can't, IIRC. n/t

[AntiFascist]

12. deleted, not relevent n/t

[The Doctor.]

8. Please let the churches that supported H8 lose their tax exempt status.

One day, society will outgrow superstition and rabid moralism.

This is all going to coincide with growth and prosperity... and the numbers will prove that ss marriage is good for families, children, and society at large.

So far, not one of the idiots I've dealt with has come up with ONE single reason to ban ss marriage... because it's good for the nation.

[Ms. Toad]

15. All the complaints I have read

are drafted very carefully along State constitutional lines. That means the loser (whichever side it is) cannot take it to the US Supreme Court. With the current court composition, that is a good thing.

[David__77]

21. No on 8 could take it further (federal), but I advise against it.

The only way to win federally is for DOMA and all anti-gay marriage restrictions to be thrown out as unconstitutional. I simply cannot imagine that right now. We need some strong "anchors" with marriage equality first, and better judges.

[Ms. Toad]

22. That would be a different lawsuit.

The current batch are drafted solely as questions under the state law.

If the California SC decides in favor of Yes on 8, a different complaint could be brought by No on 8 challenging the federal constitutionality of the Califoria constitution (as interpreted by the California SC).

No on 8 can't take these particular complaints to the US Supreme Court, since they were not plead in the alternative (i.e., the amendment was unconstitutional under the California constitution - but if we lose that argument, our alternate argument is that the amendment (or portions of the California constitution itself) is unconstitutional under the Federal constitution.)

[AntiFascist]

23. If more states adopt...

the suspect classification of sexual orientation and also that marriage should be considered a Fundamental Right, then these could be argued as precedents before the Federal Supreme Court. I think that Lambda Legal argues that we should approach this slowly right now.

[Ms. Toad]

38. Whatever a state court says is a fundamental right

under the state constitution is completely irrelevant to what is a fundamental right under the federal constitution.

What is a fundamental right under the federal constitution might start out being argued in a state court, but the decision allowing marriage in California was based on what the California constitution requires.

[AntiFascist]

43. I understand...

I'm just saying that when and if lawyers begin arguing that marriage should be considered a fundamental right before the Federal courts, they could cite rulings that have already been made at the state level, correct?

[Ms. Toad]

44. Yes, if the relevant clauses of the state constitutions

and the federal constitution are identical.

Doesn't always work - but if there is no precedent in the jurisdiction, courts sometimes look to identical statutes, regulations, or constitutional provisions from other jurisdictions for guidance. Many of the successes in second parent adoptions were based on the success in one jurisdiction with a particular argument - the cases from the original jurisdiction and the identical wording of the statute in the new jurisdiction were cited to the courts in the new jurisdiction and several new jurisdictions (states) permited second parent adoption on that basis. Unfortunately, Ohio - with identical wording - ignored the decisions from other jurisdictions. :(

[AntiFascist]

45. So this is where I'm confused...

only the Judiciary gets to decide what classes of people fall under Suspect Classification? This list never actually gets written into the Constitution, nor can the Legislature or the electorate make any decisions about what groups the list is comprised of, unless there are radical changes made to the governmental plan?

[Ms. Toad]

46. The federal legislature can write anti-discrimination statutes

based generally on their ability to regulate interstate commerce. They can also coerce states to impose restrictions using quid pro quo. (Receipt of federal money is conditioned on state compliance with restrictions - like the getting federal road money in exchange for the imposing a miminum drinking age of 21).

Generally, the federal constitution doesn't change - the courts interpret it. To explain how they are interpreting it - and to make future interpretations consistent, they create ways of analyzing things - such as fundamental rights/suspect classes.

[GreenFiles]

24. Good news! nt

[mondo joe]

25. Self delete

[Maat]

26. I'm very disappointed that the Court refused to issue a stay.

That would have allowed same-sex couples to marry pending a decision on the merits.

And, for the life of me, I do not understand why Mat Staver, of Liberty Counsel, is permitted to submit briefs on this; he's a Fundie lawyer who lives outside of California. Stay out of Californians' business, Fundamentalist YAHOOs!

[KitchenWitch]

31. I am too.

At least they will hear the matter.

[Maat]

32. Yes; help me, KW.

I feel like we live in the most backward state in the U.S.A. right now; intellectually, I know that's probably not true, but it sure feels like it.

[KitchenWitch]

33. tell me about it.

Of course both you and I live in rather backward areas of CA, so it is what we are exposed to.

:hug:

Sometimes the stupid really burns badly around here.

[Maat]

35. Well-put!

:hug:

[David__77]

27. So a majority either opposed the original decision, or opposed challenging Proposition 8.

The original decision was 4-3. One of the four dissented in taking up the question of Proposition 8's constitutionality. Does this mean that the legal fight in court is not promising?

[AntiFascist]

28. The state attorney general is responsible for defending Prop. 8...

his argument against the stay had nothing to do with Prop. 8's constitutionality, in fact the court has agreed to decide specifically on this issue later.

On edit: also someone has argued that the Constitutionality (Revision vs. Amendment) will be decided based purely on legal arguments and there will be no need for "fact finding" or "general wisdom" arguments (if I recall this correctly) so the case may be decided fairly quickly.

On second edit: it looks like the decision won't come until February, based on the CASC timeline.

On third edit: oral arguments as early as March, so this could drag on until April or May?

[David__77]

29. The problem isn't the stay. It's that we "lost" one of our justices.

Why did Kennard oppose taking up these challenges?

[AntiFascist]

30. Jerry Brown's (state AG) argument makes sense...

if Prop. 8 is ultimately decided to let stand, then anyone married between the time of the Stay and the time of the final decision would have to be invalidated, as happened in San Francisco. He doesn't want to put those people through this again. Also, this group would be separate from the people who were married before the election, who face a separate decision.

[greeneyedboy]

37. she wanted the matter to go to lower courts first?

I very much doubt that Kennard has drastically changed her opinion on equal protection. More likely she is noting her dissent on a procedural point. She didn't want the 2004 "winter of love" marriages in San Francisco stayed, after all.