Wednesday, November 19, 2008

California Supreme Court to Consider Constitutionality of Proposition 8

News has recently broken of the order filed today by the California Supreme Court agreeing to hear arguments directly on the constitutionality of Proposition 8, which was passed by California voters on November 4. The text of the order is here.

The order is significant for several reasons. First, the Supreme Court has agreed to accelerate the decision process. It has ordered all the cases filed challenging the ballot measure to be consolidated in one proceeding before it, and it has provided for an expedited briefing process. (The related story in the Sacramento Bee says that a court spokesman estimates oral arguments will take place in March 2009.)

Second, the order is significant because the Court denied the petition to prevent Prop. 8 from taking effect immediately---so it will remain in effect (and prevent further same-sex marriages) for a while, at least. (There was one dissenter from this denial---Justice Moreno, who would have voted for an immediate stay. The other six Justices disagreed---the three dissenters from the original decision, Justices Baxter, Corrigan and Chin, would naturally do so, while the others---Chief Justice George, and Justices Kennard and Werdegar---perhaps have an eye to the next time they are on the ballot for re-election.)

Third, the order is significant because it asks the parties to address these three questions in their briefs:

(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?

The second of the three questions is rather telling---it asks, in effect, whether the enactment of a Constitutional initiative interferes with the powers of the judicial branch. In other words, do they want to decide that only the Court gets to say what can be in the Constitution? (This really baffles me, since the power of the initiative is enshrined in the Constitution. Moreover, the distinction they have already drawn in their earlier decisions between an "amendment" and a "revision" would seem already to have safeguarded the separation of powers.)

Fourth, what is significant is what the Court does not ask to be addressed: its order says nothing about taking away the "rights" (actually, privileges) of a minority group, or invalidating the Proposition based on the fact that it supposedly "discriminates."

All in all, this is a unique order in several ways. Justice Kennard would grant the petitions only to the extent they request consideration of the third question above, dealing only with the effect of the Proposition on the marriages that occurred before its effective date. Does that mean she has had a change of heart, and now does not feel that she can overturn the vote of the majority?

Time will tell.


  1. The Sac Bee story has this:
    "The campaign committee that pushed the measure said it is "profoundly gratified" that court granted its requests and refused to allow outside groups like Thomasson's to participate directly in the cases."

    Does this mean that the organization that wrote the amendment is not being treated as a party and allowed to submit material for the hearing or make arguments?

    If so, isn't that really terrible because Jerry Brown doesn't really support the measure?

  2. Perpetua, the Court's order states: "The motions to intervene . . . filed on November 10, 2008, by Campaign for California Families, are DENIED." The actions were brought by Karen L. Strauss, Robin Tyler, and the City and County of San Francisco. They named as defendants the State Registrar of Vital Statistics, the State itself, and other State officials like the Secretary of State. That is because those are the State agencies that will be required to enforce the terms of Proposition 8 if it is found to be good law. (The Secretary of State was dismissed from the action in S168066, most likely because his role in this matter is over, with the election results now official.)

    They obviously did not name the group that put Prop. 8 on the ballot, because their work is also over---the measure made the ballot, and it was voted on. Nevertheless, Campaign for California Families sought leave to intervene in the cases, and the Court denied those motions, probably because they have no stake in how the measure is actually applied by the State, since they will play no further role in carrying out its terms.

    That does not mean, however, that they will be denied the right to participate in any way in the case. The court has set January 15, 2009 as the deadline for anyone to file an application for leave to file a brief amicus curiae, as a "friend of the court." Such applications will be many in this case, and are usually granted. So my best guess is that is how Thomasson's group will be allowed to participate.

  3. Mr. Haley: Note that ProtectMarriage, the official sponsor of Proposition 8 was granted intervenor status. Thomasson's group was not the official sponsor of Proposition 8.

    I quote from the ProtectMarriage press release:

    "Sacramento, CA – The official proponents of Proposition 8 and – Yes on 8, the campaign committee responsible for its enactment by voters today said it is “profoundly gratified” that the California Supreme Court granted all their requests by agreeing to accept original jurisdiction of three cases challenging the measure’s validity, granted their request to intervene in the cases as Real Parties in Interest, denied the request of others to delay implementation of Proposition 8, and refused to allow outside groups to directly participate in the litigation....

    Also of key significance, the Court has granted the request of the proponents of the initiative and their campaign committee to intervene in the litigation as Real Parties in Interests. This ruling grants the backers of Prop. 8 full legal standing to submit written arguments and appear in oral argument before the Court.

    “Granting the backers of Prop. 8 intervention in these cases means that voters can be certain that there will be a thorough and vigorous defense of Prop. 8, “Pugno said. “Voters will not have to solely depend on Attorney General Jerry Brown to defend the measure. Since the attorney general was an active opponent of Proposition 8, we did not want the fate of the measure to rest in his defense of it.”

    The Court also denied the request of unrelated parties, including the Campaign for California Families (CCF), to intervene in the litigation. The proponents of Prop. 8 had asked the Court to deny CCF’s proposed intervention."

  4. James, thank you for pointing that out. I neglected to account for the sentence in the order which precedes the one I had quoted.