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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Court plunged back into the same-sex marriage wars Wednesday, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.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. December 5, 2008 6:15 PM

    Point of record here….the reason that the Mormon underwear post is listed on the side as one of the most read on this blog is the fact that everyday many people Google that term and land here on my blog.

    When I posted it during the primaries it was based on some curiousity I had over the issue, and when I found the 60 Minutes video, I knew that I was not alone in my level of interest.

    In fact I know someone in Madison that invited a Mormon college age kid in to see the underwear. Everyone seems to be interested.

    When I see that every day for months this post gets high hits I know there are many who are fascinated. The Mitt Romney picture was just very topical at the time. I did not add at the time, but there was a small part of me that wanted him to become the nominee so someone could give him the briefs or boxers question.

    At the end of the day there are many heavy topics to write about. Some lighter fare is always a good idea. The underwear is one that worked then, and since.

  2. Patrick permalink
    December 4, 2008 11:18 PM

    I agree that things are moving toward a society more willing to tolerate–and hopefully see as no big deal–gay marriage. In my highschool it is no longer a big deal for a gay student to become the prom king or queen for example. Most kids don’t give a rip. That’s good news.

    Lets also be clear: I’m not trying to claim that the intimidation of mormons by gay activists comes even close to the violence inflicted on gays, but that cannot excuse what has happened. Mormons should be allowed to peacefully vote or fund whatever they want without being singled out or threatened with tax-exempt witch hunts.

    That being said, I think there is still room for civil disagreement. The first thing we need to accept is the right of people to move through the democratic process. You might not like that the people vote on such things, but it is a part of the larger system of checks and balances. The courts could easily make a ruling you believe takes away the rights of one group or another. Court rulings don’t change attitudes; consider as evidence the continued struggle of most minority groups. The problem here is one of communication. The gay rights community first failed to communicate the justice of their cause. Instead, they ran an extreme add which protrayed another group–the mormons as nazi thugs. They are not. Just as you are convinced that the beliefs you were raised with are correct, so do they. That is an opportunity for one community to reach out toward another–especially when it seems hard. Secondly, the gay rights community vented anger not at voters, but at the mormon church and mormon people. There were protests at mormon churcher in several states, but no protests at NAACP offices and none at Obama HQ’s even though these groups voted against gay marriage. There’s also the matter of your previous post about the mormon underwear–one of the top posts listed on the right, I believe. To me, its bigoted, low humor. You’d not tolerate another blogger posting gay underwear. My point is that those who ask for tolerance need to be tolerant themselves. I realize this seems totally unfair–to hold members of the gay community to some higher standard. But I think it is necessary because of how it appears. The people I care for will never be able to live in a world where they are no big deal until people’s hearts and minds are changed. You don’t change hearts with anthrax.

    I’ll support the people in my life, but I’ll have to think very carefully about supporting the organizes gay rights movement which–and lets be honest about this–regularly mocks(dressing as nuns or priests, etc…) anyone who opposes them

  3. ferrellgummitt permalink
    December 3, 2008 9:28 AM

    Deke, gay marriage may be inevitable. But, the “scorched-earth” campaign to victory pushed by gay-marriage advocates may well be disastrous, and “liberals” should be ashamed for embracing it.

  4. December 3, 2008 12:38 AM

    Thanks for writing and sharing your thoughts. I think this is an important conversation, and I want you to know that I value the time you take to respond. I also am glad we can disagree without being disagreeable.

    Why, you ask do I focus on the Mormons?

    I am focused on the Mormons due to the fact that they contributed nearly 50% of the money used on Prop 8. As a church I question their tax exempt status based on this action.

    If you have read other posts here you will note that I also have written about black Americans, and even in my election predicitons commented that this group was very important to watch as they would vote culture over civil rights. And it was shocking to see the proud vote for Obama, and then the shameful way that they voted against the civil rights for others. I know from conversations with some African-Americans from Madison that they too saw that as a sad vote on an otherwise remarkable election night. Granted we are more liberal here in Madison, but I suspect that view is shared by many.

    I think I was misunderstood by one remark. So let me restate it.

    I do not think that there are that many instances of serious acts against the Mormons, as it seems you imply, as a result of the deeds done by the Mormons in California. I think I watch and follow the news but I just do not see the violence to the degree that you suggest it is taking place. Isolated cases do not make a violent reaction. (At least in my mind)

    As for the gay issue, and the role that voters will play in the future, I have some thoughts.

    First, the matter is not one for the general voter, but is one for the legal process. The rights of one group over another should not be left to the public to decide on. I predict that in a decade the right to marriage for gays will be as natural as that for everyone else. But the right will be granted by the courts, and not voters.

    I was so heartened to hear a professor talk at the dinner table one night this weekend about her students who are in most cases carefree and not overly political. So when asked about gay marriage had no problem with it. It was a non-issue. They had gay friends in high school, more in college, and it was just not a rational act to be opposed to it.

    I might suggest that the margin of victory in CA was much smaller than a similar vote on a gay issue within the last decade there…perhaps a bit longer ago. The trend line is moving towards the goal all over the nation.

    Second, and I tried to convery this in a previous response, but will try again in a new way, with another topic.

    I found the actions of those on 9/11 one of the most bizarre in my lifetime. They were steeped in a brand of Islam that I do not understand. But their actions that resulted in real violence, and even two wars, would not deter me from voting for a Muslim candidate for any office in the land.

    My convictions about what I know to be right and wrong are so deep and woven within me from childhood that no fringe group, no matter how awful the episode, could take me off the track.

    You have friends and relatives that are gay, and you express in some way a desire to see their civil rights empowered, and yet would allow a small number of incidents to stop you from making sure that those rights are allowed. That I do not understand.

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