Supreme Court will hear Prop. 8 arguments in March
Local attorney says case is ‘challenging’
Published Thursday, 12-Feb-2009 in issue 1103
The California Supreme Court announced last week it will hear oral arguments on March 5 in the legal challenges to Proposition 8, the California constitutional amendment banning same-sex marriage.
Opponents of the voter-approved ban – including California Attorney General Jerry Brown, Gov. Arnold Schwarzenegger, and a host of civil rights organizations, legislators, labor unions, and religious groups – say Proposition 8 violates one group’s inalienable right to marry. Opponents also argue the new law is invalid because it revised the state Constitution without a two-thirds vote by the legislature.
“That protective extra step is understood as being necessary to protect the minority from the majority on any given issue,” said Kate Kendell, the executive director of the National Center for Lesbian Rights.
Due process for a revision of the state constitution requires the legislature’s approval, and a two-thirds popular vote.
“It is simply not appropriate for the voters to be able to eliminate the fundamental rights of a minority group,” Kendell said.
If the Supreme Court rules Proposition 8 will stand, opponents say more restrictions could follow.
“It would be a green light, [leading to] even more of this kind of use of the initiative process to bully whatever minority group that is most unpopular each election cycle,” said Jenny Pizer, senior counsel for Lambda Legal’s Western Regional Office.
The oral arguments before the high court will last three hours.
Shannon Minter – senior counsel for the NCLR, who argued the marriage cases before the Supreme Court last year – will present oral arguments alongside San Francisco Chief Deputy City Attorney Terry Stewart and attorney Gloria Allred. Lambda Legal will present friend-of-the-court briefs, and Kenneth Starr, the leading lawyer in the impeachment of President Bill Clinton, will present the main defense of Proposition 8.
On Jan. 15, 43 friend-of-the-court briefs were filed against the marriage ban and about 20 have been filed in favor. After hearing the case, the California Supreme Court will issue its decision within 90 days.
On May 15, 2008, the Supreme Court ruled Proposition 22 – a 2000 voter-approved measure defining marriage as a union between one man and one woman – violated the state Constitution, and said same-sex marriage is legal in California. Same-sex couples began marrying in June, setting the stage for a battle at the ballot box. Voters approved Proposition 8 by 52 percent, dealing a crushing blow to same-sex marriage advocates – and prompting the current legal challenges.
On Nov. 10, six days after the election, Gov. Arnold Schwarzenegger said he hoped the court would overturn Proposition 8.
“It’s unfortunate obviously,” Schwarzenegger said. “It’s not the end; I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area.”
On Nov. 19, the California Supreme Court agreed to hear legal challenges to Proposition 8.
Opponents of Proposition 8 say an equal protection clause in the Constitution guarantees every citizen the right to be treated equally.
“If we’re not right, then we no longer have a constitutional democracy in this state,” Pizer said. “We have a direct democracy where the mob rules and minorities no longer have constitutional protection.”
When deciding whether to hear the oral arguments, California Supreme Court Justice Joyce Kennard – who voted in favor of overturning Proposition 22 last year – voted against hearing the legal challenges.
“I do not think it is indicative of where she is going to end up on the question of whether Prop. 8 is a revision or not,” Kendell says.
Some speculate Kennard may have simply wanted the motion to pass through the lower courts first before being heard by the Supreme Court.
Pizer said Kennard is a known supporter of the gay, lesbian, bisexual and transgender community.
“She is somebody who has spoken strongly about the social harms and personal injury inflicted on people by discrimination,” Pizer said.
Eric Isaacson, a San Diego attorney and member of the First Unitarian Universalist Church in Hillcrest, helped filed amicus briefs in the case – one on behalf of faith communities.
“[This] is a challenging case,” Isaacson said. “You’re looking at a seven-justice court in which three justices said they didn’t think there’s a fundamental right. They didn’t think there was a violation of equal protection of the law, and they thought there wasn’t a violation in the first place.”
Some same-sex marriage supporters believe if the court rules Proposition 8 invalid, opponents of same-sex marriage will launch a recall of the justices.
“We have to stand by the justices who stood with us,” Kendell said.
The feeling among opponents of Proposition 8 is “cautiously optimistic,” Kendell said.
“While we are still hopeful, no one should be chilling the champagne quite yet,” she said.