California Supreme Court To Hear Prop 8 Case, Refused a Stay

The California Supreme Court today agreed to consider the legality of Proposition 8, but refused to block enforcement of the voter-approved ban on gay marriage while the latest legal struggle unfolds in the coming months.

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?

With six nearly-identical challenges to Proposition 8 on their docket, the justices voted to review arguments that the same-sex marriage ban was an improper method of amending the California Constitution and undermines the rights of minorities across the state. The same Supreme Court narrowly struck down California’s prior ban on gay marriage in a ruling this spring, and the renewed challenge will test whether Proposition 8 ultimately trumps that ruling.

A host of civil rights groups, local governments and same-sex couples seeking the right to marry joined in lawsuits since voters backed Proposition 8 by a 52 to 48 percent margin in this month’s election. The Supreme Court rejected their bid to stay enforcement of the law to allow gay couples to continue marrying, agreeing with Attorney General Jerry Brown, who earlier this week opposed such a freeze on Proposition 8 because it would generate too much legal confusion.

In their orders, the justices asked for legal arguments on how Proposition 8 would impact the thousands of couples who married before the November election if the gay marriage ban is eventually found to be constitutional. Brown has maintained those marriages are valid and cannot be voided.

Brown did urge the justices to tackle the legal fight over gay marriage, saying California needs finality on the subject. Proposition 8 supporters also asked the high court to review the legal challenges, although they have indicated they do not believe Brown and Gov. Arnold Schwarzenegger will adequately defend the law. Gay marriage opponents argue the Supreme Court should not interfere with the will of the voters, and have warned of a recall campaign against the justices if they once again strike down a gay marriage ban.

Schwarzenegger has stated publicly that he believes the state Supreme Court will again find the gay marriage ban unconstitutional.

In the meantime, couples now seeking the right to marry will have to wait for the outcome in the Supreme Court. The central question in the case is whether a change to the state constitution that removes a legal right for a minority group is so dramatic that it must first be considered by the Legislature before it can be put before the voters.

Gay rights advocates argue that a ballot measure such as Proposition 8 cannot be used to strip away the constitutional rights established in May’s Supreme Court ruling. In a technical argument with sweeping ramifications, they contend the gay marriage ban amounted to a revision to the existing state Constitution, requiring a two-thirds majority of the Legislature — or a state constitutional convention — to the get the issue on the ballot.

San Francisco city officials and Santa Clara County have backed that argument.

via Mercury News