This is the news we were hoping to hear, (kind of) although there is reason for concern over the dissent of Justice Kennard, and no reason to be pleased with the refusal to allow gay marriages to continue during this time of review.
The state Supreme Court plunged back into the same-sex marriage wars Wednesday, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.
Six months after its momentous ruling that struck down the state’s ban on same-sex marriage, the court granted requests by both sponsors and opponents of Proposition 8 to review lawsuits challenging the Nov. 4 initiative.
The vote was 6-1, with Justice Joyce Kennard dissenting.
However, the court refused, 6-1, to let same-sex marriages resume while it considers Prop. 8’s constitutionality. Justice Carlos Moreno cast the dissenting vote.
Approved by 52 percent of voters, Prop. 8 restored the definition of marriage – a union of a man and a woman – that the court had overturned May 15. Both Kennard and Moreno voted with the majority in that 4-3 ruling.
The court agreed Wednesday to review two arguments by opponents of Prop. 8 – that the measure exceeds the legal scope of a ballot initiative by allowing a majority to restrict a minority group’s rights, and that it violates the constitutional separation of powers by limiting judicial authority.
The justices also asked for arguments on whether Prop. 8, if constitutional, would nullify 18,000 same-sex weddings performed between when the court’s marriage ruling took effect in mid-June 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.
The justices asked for written arguments to be submitted by Jan. 21. The court could hold a hearing as early as March, with a ruling due 90 days later.
Possible trouble for opponents
While both sides cheered the court’s decision to take up the cases, Kennard’s lone vote to deny review could spell trouble for opponents of Prop. 8.
Kennard is the court’s longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples’ rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.
“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.
For those seeking to overturn Prop. 8, “I would not think it would be encouraging,” said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.