California Supreme Court to issue Prop. 8 decision today

[garbon]

http://www.latimes.com/news/local/la-me-prop8court26-2009may26,0,4718659.story

Reporting from San Francisco and Los Angeles -- What is being decided by the California Supreme Court?

The state's top court will rule on whether to uphold or strike down Proposition 8, a constitutional amendment banning same-sex marriage. The justices will also decide whether the state will continue to recognize the estimated 18,000 same-sex marriages carried out in 2008.

How did we get to this point?

After San Francisco officials began allowing same-sex couples to wed there in 2004, the courts intervened, invalidating the marriages on grounds that local officials had overstepped their authority.

But in May 2008, the California Supreme Court ruled that the state Constitution protects a fundamental "right to marry" that extends to same-sex couples.

That made California the second state in the union, after Massachusetts, to permit same-sex marriage.

About 18,000 gay and lesbian couples married between June and November, when voters approved Proposition 8, which amended the state Constitution to recognize marriage as only between a man and woman.

Opponents of Proposition 8 appealed to the California Supreme Court to overturn the ballot measure. They contend that the proposition changed the tenets of the state Constitution and therefore amounted to a revision, which can only be placed on the ballot by a two-thirds vote of the Legislature; Proposition 8 reached the ballot after a signature drive.

What do legal experts expect the court to do?

Based on comments the justices made at a hearing earlier this year, most legal experts expect the court to uphold Proposition 8 but continue to recognize the marriages of same-sex couples wed before the November election.

If the court upholds Proposition 8, what happens next?

State officials would continue to prohibit issuing marriage licenses to same-sex couples. Supporters of same-sex marriage, however, are expected to go back to the ballot box as early as 2010 with a constitutional amendment recognizing same-sex marriage.

If Proposition 8 is upheld, would that affect the state's domestic partnership law, which gives same-sex couples the legal rights of marriage?

No. State law surrounding domestic partnerships is separate from the issue of allowing same-sex couples to marry. There is no dispute about the legality of domestic partnerships.

After the California Supreme Court ruled in May 2008 that same-sex couples could marry, the state also began to recognize same-sex couples married out of state.

If Proposition 8 is upheld, would California continue to recognize those couples as married?

That's a question the California Supreme Court will decide.

How have other states handled same-sex marriage?

Most states do not recognize same-sex marriage, either by state law or constitutional amendment. The federal government does not recognize same-sex marriage. Some states, mostly on the West Coast and in the Northeast, offer same-sex couples civil unions or domestic partnerships, giving each partner some of the legal benefits granted to spouses, such as the ability to file joint income tax returns and receive spousal health insurance benefits from government agencies.

Five states now allow same-sex couples to marry: Massachusetts, Connecticut, Iowa, Vermont and Maine. In New Hampshire, New York and New Jersey, lawmakers are considering legalizing same-sex marriage. In Iowa and Maine, opponents of same-sex marriage say they plan to use the ballot box to overturn decisions to legalize same-sex marriage.

What are some tips for reading the state Supreme Court's decision?

The majority decision should be revealed in the first or second page of the ruling and reiterated in its last paragraph. Separate concurring and dissenting opinions would follow.

Counting votes may be tricky because the court is dealing with three different legal issues: whether Proposition 8 amounts to an impermissible revision of the state Constitution; the attorney general's challenge contending that marriage is an "inalienable" right that can't be taken away without compelling justification; and the fate of existing same-sex marriages.

The court's vote on the revision issue, for example, will probably differ from its vote on whether existing marriages should continue to be recognized by the state.

Justices who disagree with the majority file dissents. If they agree with only part of the majority decision, they file an opinion called a partial concurrence and dissent.

During oral argument in March, every justice expressed support for upholding existing marriages. Justice Carlos R. Moreno indicated that he believed Proposition 8 was an illegal revision, a sign that he could dissent on that question.

Moreno might be joined by Justice Kathryn Mickle Werdegar, a former civil rights lawyer who stressed that the court was dealing with a novel legal question. Werdegar, however, did not join Moreno in voting to put the measure on hold pending the court's ruling.

I'm going to make sure my calendar is free. Given the expected ruling of the court, I think tomorrow will be a day for protesting.

[Martinus]

My thoughts are with my brothers and sistars in California.

[katmai]

I'm going to make sure my calendar is free. Given the expected ruling of the court, I think tomorrow will be a day for protesting.

Why don't you want the right to marry! 

[Razgovory]

I have a question:  How can a State Supreme court strike down an amendment to the State Constitution?

[Tonitrus]

I have a question:  How can a State Supreme court strike down an amendment to the State Constitution?

Questioning the power of our judicial overlords?

The American Bar Association will now add you to their list for "reeducation".

[grumbler]

I have a question:  How can a State Supreme court strike down an amendment to the State Constitution?

That question is answered inthe article:  the challenge is to the procedures used for that type of amendement (the opponents claiming that this particular type of amendment needs to be initiated by the legislature, not petition).

[DontSayBanana]

I have a question:  How can a State Supreme court strike down an amendment to the State Constitution?

The same way any other court can: testing its constitutionality. They can't legislate from the bench, but they do have the authority to step in and say a certain law was illegal to create and should never have been codified.

I'm actually pretty annoyed about this. It looks like it's going to be heard as a voter's rights case. Bottom line: it's a cover for a gender equality case, and it's been accepted for a while now that we can't simply legislate away equal rights. Prop. 8 should have crashed and burned once somebody pointed that out.

[Faeelin]

I have a question:  How can a State Supreme court strike down an amendment to the State Constitution?

The same way any other court can: testing its constitutionality. They can't legislate from the bench, but they do have the authority to step in and say a certain law was illegal to create and should never have been codified.

I'm actually pretty annoyed about this. It looks like it's going to be heard as a voter's rights case. Bottom line: it's a cover for a gender equality case, and it's been accepted for a while now that we can't simply legislate away equal rights. Prop. 8 should have crashed and burned once somebody pointed that out.

Here's what I find interesting about the Court's outcome, which almost certainly be to uphold Prop 8. In their original ruling allowing gay marriage, the court basically viewed gays and lesbians as a minority group that had faced systematic discrimination and were being deprived of a fundamental right for an unjust reason. The court went on to describe the gay and lesbian community as essentially powerless and therefore easily oppressed; whether that's true or not is unclear, but it does raise an interesting question. Is the Supreme Court of California going to state that there's nothing wrong with the majority stripping a minority of what it called a fundamental right, and if so, is the California Constitution mere verbiage?

[DontSayBanana]

Here's what I find interesting about the Court's outcome, which almost certainly be to uphold Prop 8. In their original ruling allowing gay marriage, the court basically viewed gays and lesbians as a minority group that had faced systematic discrimination and were being deprived of a fundamental right for an unjust reason. The court went on to describe the gay and lesbian community as essentially powerless and therefore easily oppressed; whether that's true or not is unclear, but it does raise an interesting question. Is the Supreme Court of California going to state that there's nothing wrong with the majority stripping a minority of what it called a fundamental right, and if so, is the California Constitution mere verbiage?

My prediction is California's Supreme Court going to try to vocab its way out of granting rights by saying that marriage is not a fundamental right. I also predict it will be contested, and that it will eventually be heard by the USSC, mainly with these two arguments:

1) Marriage is not a fundamental right, but the ability to care for a household and its dependents is.

2) Refusing to recognize marriages based on the gender of the partners is gender discrimination, and might have its place in the church, but has no place in state or federal law.

[Valmy]

Questioning the power of our judicial overlords?

The American Bar Association will now add you to their list for "reeducation".

Thanks Hans

[Faeelin]

My prediction is California's Supreme Court going to try to vocab its way out of granting rights by saying that marriage is not a fundamental right. I also predict it will be contested, and that it will eventually be heard by the USSC, mainly with these two arguments:

1) Marriage is not a fundamental right, but the ability to care for a household and its dependents is.

2) Refusing to recognize marriages based on the gender of the partners is gender discrimination, and might have its place in the church, but has no place in state or federal law.

Okay, here's the problem I see with that. The Court will have to frankly backtrack, and say that it was wrong when it called marriage a fundamental right under the California Constitution in In Re Marriage Cases. In essence, it will have to imply that the entire original case was wrongly decided, won't it? Gays and lesbians already had civil unions in California, which gave them the ability to care for "a household and its dependents."

Going back to the original opinion:

"Although our state Constitution does not contain any explicit reference to a "right to marry," past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 (Valerie N.) ["The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests. [Citations.] . . . These rights are aspects of the right of privacy which . . . is express in section 1 of article {Page 43 Cal.4th 810} I of the California Constitution which includes among the inalienable rights possessed by all persons in this state, that of 'privacy' "]; Williams v. Garcetti (1993) 5 Cal.4th 561, 577 ["we have . . . recognized that '[t]he concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government . . . extends to . . . such basic civil liberties and rights not explicitly listed in the Constitution [as] the right "to marry, establish a home and bring up children"

http://online.ceb.com/calcases/C4/43C4t757.htm

Anyway, while I predict gay marriage will come before the SCOTUS, I think it'll be through one of the DoMA cases that are filtering about, and not through this.

[Valmy]

Okay, here's the problem I see with that. The Court will have to frankly backtrack, and say that it was wrong when it called marriage a fundamental right under the California Constitution in In Re Marriage Cases. In essence, it will have to imply that the entire original case was wrongly decided, won't it? Gays and lesbians already had civil unions in California, which gave them the ability to care for "a household and its dependents."

Anyway, while I predict gay marriage will come before the SCOTUS, I think it'll be through one of the DoMA cases that are filtering about, and not through this.

Why would they have to backtrack?  Gender discrimination is now enshrined in the Constitution, so their decision would not be based on the same law.  The California Constitution of 2008 is not the same document as the California Constitution of 2009.

[Faeelin]

Why would they have to backtrack?  Gender discrimination is now enshrined in the Constitution, so their decision would not be based on the same law.  The California Constitution of 2008 is not the same document as the California Constitution of 2009.

Sure. But it seems odd to say in 2008 "Although our state Constitution does not contain any explicit reference to a "right to marry," past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution," noting, "Although some California decisions in discussing suspect classifications have referred to a group's "political powerlessness" (see, e.g. Raffaelli v. Committee of Bar Examiners, supra, 7 Cal.3d 288, 292), our cases have not identified a group's current political powerlessness as a necessary prerequisite for treatment as a suspect class. fn. 62 ... our decisions make clear that the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society.

In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution's equal protection clause. "

So my question is basically, will the Court acknowledge this makes discussion of suspected classes who have little political power irrelevent? It seems odd to say the courts have to protect politically powerless groups, and then say you can take away their rights more easily than you can pass a budget...

[DontSayBanana]

The court backtracking and deciding that a previous session was wrong is not without precedent. In Plessy v. Ferguson, the Supreme Court decided that segregation did not violate the 14th Amendment. in 1954, the USSC overturned its own decision and decided that racial segregation was a violation of the 14th Amendment.

[Faeelin]

The court backtracking and deciding that a previous session was wrong is not without precedent. In Plessy v. Ferguson, the Supreme Court decided that segregation did not violate the 14th Amendment. in 1954, the USSC overturned its own decision and decided that racial segregation was a violation of the 14th Amendment.

Sure. And even in California, the court which had held the death penalty to be a violation of fundamental human rights later acknowledged that, thanks to a referendum, it was now constitutional. I think the Court, mindful of precedent, will not go so far and reverse say its previous decision is wrong, but we'll see.