Legal News

Cali High Court to Review Prop. 8; Ban Remains Pending Final Decision

By Dan Slater

It’s time to put Proposition 8 back on our radar. Yesterday, California’s High Court voted 6 to 1 to review legal challenges to the voter initiative that restored the state’s ban on same-sex marriage. (But the court refused to stay the ban pending its final decision.)

Associated Press

Protesters against Proposition 8 march on Sunday Nov. 2, 2008 in Fresno, Calif. Photo: AP

The L.A. Times reports that the court may hold a hearing on the lawsuits as early as March. The LAT notes that, in a move that puzzled some legal analysts, Justice Joyce L. Kennard, a generally reliable supporter of gay rights, voted to deny review of the Proposition 8 challenges. The court gave no indication of her reasons but said she was willing to hear a separate case on the validity of existing gay marriages. (Here’s another story from the NYT.)

“We see today as a grand slam,” Andy Pugno, general counsel of Protect Marriage.com, told the LAT. “Everything we asked for was granted.” He said Kennard’s vote “seemed to indicate that she thought the lawsuits had . . . little merit.”

California’s “Governator,” Arnold Schwarzenegger, has said he expected the court to overturn the proposition and indicated that he favored that outcome.

Among other legal arguments, such as equal protection challenges, gay rights advocates argue that the measure was a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention. Proposition 8, however, reached the ballot after a signature drive.

Two weeks ago, here’s how David Cruz, a constitutional law expert at the University of Southern California, explained it to the Law Blog:

. . . The three lawsuits [here, here and here] challenge the procedure by which the referendum was passed. Under California law, there are two categories of changes that can be made to the state constitution: amendments and revisions. Amendments are more minor changes; revisions are larger in effect. This is important because each has its own process for taking effect — essentially different ways they go before the voters. An amendment can go in the form of a ballot initiative, which requires a certain number of signatures to make its way on. Constitutional revisions, however, have to have a two-thirds blessing from each house of the state legislature to make the ballot.

Now, the problem, at least from the point of view of Prop. 8 supporters, is that the legislature had previously indicated a willingness to support same-sex marriage. So the proposition’s supporters were unwilling to treat this [change] as a revision and send it to the legislature, opting instead to treat it as an amendment. The Prop. 8 opponents are arguing that this change actually constitutes a revision, not an amendment, and therefore needed to go through the legislature.

Full post as published by Law Blog - WSJ.com on November 20, 2008 (boomark / email).