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California Supreme Court Will Hear Prop 8 Case

November 19, 2008

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Court plunged back into the same-sex marriage wars Wednesday, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.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.

14 Comments
  1. Patrick permalink
    December 2, 2008 10:49 PM

    “I do however know that everytime gay bigotry is practiced, such as by the Mormons, there is a direct relationship to gay beatings and other such actual violence in communities where the bigoted language is used.” Great, but now the gays are using bigoted language against Mormons, and people are sending them anthrax props. There’s a civil rights achievement we can all be proud of. We’ve come a long way from Stonewall.

    Again, I wonder why you are so focused on the Mormons? Minorities who went to the ballot box voted against your position on prop 8. Do you think the average African-American Obama supporter said: “hey, those Mormons are against prop 8, so me too?” please. You’re smarter than that. The problem was that the gay rights community–whose cause I can respect–didn’t present their case effectively to those very civil rights minded minority groups.

    An even bigger problem is this: I’m sure my disgust with the actions of that small minority of gay activists/terrorists isn’t as isolated as you suspect. While I would have supported gay marriage in california, wisconsin, or wherever–I’m pissed off by these tactics and that they are not denounced. Bigotry in response to bigotry isn’t a winning formula for change or for my support or that of the many people like me. Voters. So will the gay activist/terrorist fringe of the gay civil rights movement become more active? If so, kiss the cause goodbye. That will of course be damaging to some of my friends and relatives, but so be it.

    Without respect for democracy–even when it screws up–there is no respect for the law. Without respect for the law there are no civil rights.

  2. December 2, 2008 7:16 PM

    “I think that history will show that either one respected the sacred tradition of democracy or they did not.”

    Is one of the respected traditions of democracy the stripping away of civil rights by the electorate?

    Has there ever been civil rights placed on the ballot for the average Joe to cast a ballot for or against? Had this been the case do you think that Brown v. Bd. of Education would have ever been enacted. Or mixed marriages?

    I guess you see and hear lots more of the horrible acts than I do. To be honest I do not see it.

    I do however know that everytime gay bigotry is practiced, such as by the Mormons, there is a direct relationship to gay beatings and other such actual violence in communities where the bigoted language is used.

    Let me repeat. While 99% of the reaction has been totally proper there is always some that crosses the line when protesting. But there is a growing statement being made about the Mormons and what they did. Had they wished not to get into this mess the Mormons should have stayed out of California.

    I also repear the Mormons are a fine group to talk about the proper role of marriage in our society.

  3. Patrick permalink
    December 2, 2008 6:32 PM

    Did the Gay rights activists–whose actions including terrorism (white powder sent to Mormon churches)you support–target other groups for their specific and vile hatred? Did they send their poison to the NAACP? Or is the highest moral position you can muster that the ends justify the means? To me things are more complicated: there was an election; people voted; one side lost–therefore any reaction is to be excused by the pathetic argument that most did not react that way. I’m sure al-Qeada would love that thinking.

    The Freedom from religion foundation spends millions every year to undermine my catholic church–should I send them a pipe bomb?

    I think that history will show that either one respected the sacred tradition of democracy or they did not. I think that history will show that either one stood against violence and intimidation in all its forms or not. I think that history may well show that this generation of gay men and women lacked moral courage and silently allowed violent thugs to pollute and otherwise pure and enlightened movement.

    Civil rights are predicated on civil good will and moral courage on both sides. Gay bigotry–and those who equivicate about it–will never result in equality.

  4. December 2, 2008 12:15 PM

    History will show either one stood on the side of progress and civil rights, or one stood on the other side and attempted to deny those rights. It is that clear.

    99.9% of the reaction to the Mormons have been non-violent. There are always some in every group that do things that are not wise.

    But the Mormons put themselves into this position and now must deal with it.

  5. ferrellgummitt permalink
    December 2, 2008 10:27 AM

    So is it your argument that if someone or party undermines Jews or Catholics or any other group in such a matter as the Mormons did to Prop 8 it is alright for them to resort to committing violence and vandalism to get their point across??

  6. December 1, 2008 10:12 PM

    The Mormon Church acted in a hateful and vile way when they donated tens of millions to take way the civil rights of a group they opposed. There is a very deep and swift reaction building to that stand. What reaction would anyone expect from any group after such a disgusting display of bigotry as the Mormons put forth? I wonder how you would have felt had they spent money to undermine Jews, Catholics, or some other group. I can assure you that I hold only comtempt for the Mormons who acted in this manner. And I also know that if you are truly concerned about gay rights no one can move you from that position.

    I can say that my convictions on a whole host of issues from A-Z are strong enough not to be moved by anyone or anything. I hope that you too are of that mind.

  7. Patrick permalink
    December 1, 2008 9:46 PM

    I have to admit that my support for Gay rights has taken a serious blow after hearing of the bigoted response of some gay activitst toward the Mormons and other groups who opposed gay marriage agenda. Its ironic that the gay rights movement wraps itself in high ideals then vents its anger on a target which it perceives to be less powerful than itself. One cannot ask for tolerance, equality, and civil rights out of one side of the mouth while silently ascenting to vile hate out of the other. Fair Wisconsin just lost my donation.

  8. November 20, 2008 11:39 AM

    But isn’t the larger concern (than yours of gay marriage) that the electorate could undo first this right….and then another right…..where does it stop? And if we follow your arguement there is no one that can stop it. The role of the Justices will be diluted, and the whole system we have will be a two legged stool instead of the three legged one we have long known.

    That is not what the Framers had in mind.

  9. ferrellgummitt permalink
    November 20, 2008 10:58 AM

    Again AG Moonbeam and the Governator are going against what the people voted for and do an end around through the courts.

    I will stick by what I said previously, if Prop 8 is thrown out by the CA courts it will set a very dangerous precedent. Other states will follow with making Gay marriage legal in their states and none of those will bring it up for a vote.

    Yesterday in a somewhat related matter, the state of CA strong armed Eharmony, an online dating service to start putting in a section for Gay dating. This was a result of a lawsuit brought about by a Gay man in 2005 who said it was discrimination that there were no male seeking male or female seeking female sections on the Eharmony site. The founder of Eharmony is Christian and this goes against his beliefs as to why he started Eharmony.

    Now the Bush Administration in its ever flowing stupidity has put into affect that if a medical facility refuses to perform abortions it could lose its federal funding. How long until Catholic hospitals will have to perform abortions or lose federal money?

    Again, the government is imposing the minority will on people to do what they feel is morally reprehensible.

    If Gay Marriage passes how long until the government tells Bible believing churches that they have to perform Gay Marriages or lose their tax exempt status?

  10. notalib permalink
    November 20, 2008 5:56 AM

    And again the will of the people will be put at risk by activist judges. Americas right to vote will take a step backwords as California tells America your vote does not matter.

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