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Proposition 8 Arguments to be Heard by CA Supreme Court March 5th

By L. K. Regan

The California Supreme Court announced on Tuesday that it would hear oral arguments pertaining to Proposition 8, the state’s constitutional amendment banning gay marriage, on Monday, March 5th. This gives lawyers and activists just a month in which to organize and protest.

The state's Supreme Court agreed last November to hear challenges to Prop 8, which was passed as a ballot measure in the November 2008 elections. The court directed the parties to the suits challenging Prop 8 to address the following issues in their briefs, and gave them until last month to do so:

  1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
  2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
  3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
By January 15th of this year, documents for the original suits as well as some 43 friend-of-court briefs had been filed with the state’s high court. These last were submitted by civil rights organizations, legislators, legal scholars, businesses and even religious groups, all arguing that Proposition 8 constitutes unfair discrimination.

The cases that the court will hear, all filed on November 5th, include a challenge filed by the National Center for Lesbian Rights, Lambda Legal, and the ACLU. Their brief argues that a ballot measure cannot deprive a minority of its equal protection under the law. The court will also hear two other challenges, one brought by several California counties and municipalities, claiming that Prop 8 so thoroughly undermines the state constitution’s equal protection clause that it is a revision of that constitution rather than an amendment, and another brought by a private attorney. All three suits challenge Proposition 8 on the grounds that, as Los Angeles City Attorney Dennis Herrera has said, “If allowed to stand, Prop 8 would so devastate the principle of equal protection that it could endanger the fundamental rights of any potential electoral minority—even for protected classes based on race, religion, national origin and gender.” This goes, the suits argue, well beyond the limits of what a ballot measure should be permitted to do.

The state Supreme Court’s verdict will thoroughly determine Prop 8’s legal status, from the legality of voters’ depriving minorities of a right the court itself found in the state constitution, to the status of the existing marriages performed during the few months between the court’s initial decision legalizing gay marriage and the passage of the ballot measure. The court is hearing oral arguments on an expedited basis, and is required to release a ruling in the cases within 90 days of those arguments. That means that a verdict on Prop 8 will be in our hands—and lives—by June. That’s just in time for wedding season, and a little more than a year after the court’s initial decision legalizing gay marriage opened the floodgates on five months of joyful unions.

To facilitate public access to the court’s process, the California Channel, a public-access cable channel, will broadcast the arguments live, from 9 AM to noon PST on March 5th. It might be worth taking the morning off to watch the debate.