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California Supreme Court to Determine Prop. 8’s Constitutionality

The California Supreme Court on Nov. 19 agreed to hear lawsuits alleging that Proposition 8 is unconstitutional. 


The initiative, passed by voters Nov. 4, amended the state constitution to re-ban same-sex marriage, which had been legal since June 16, courtesy of a May ruling by the court.

Six of the seven justices agreed to hear the cases and ordered the parties to answer these questions:

• Did Prop. 8 make such a major change to the California Constitution that it amounts to a “revision” of the document? (Voters can collect signatures to place initiatives on the ballot to “amend” the constitution, as they did with Prop 8, but a constitutional “revision” requires a two-thirds vote of the Legislature or a state constitutional convention.)

• Does Prop 8. violate the constitution's separation-of-powers doctrine by restricting judges’ authority to protect gay couples?

• If Prop 8. is constitutional, does it invalidate the 18,000 same-sex marriages that took place in California between June 16 and Nov. 4?

Written arguments must be filed by Jan. 5, friend-of-the-court briefs must be filed by Jan. 15, and replies to the latter must be filed by Jan. 21. A hearing is expected as early as March and a ruling would be due 90 days later, meaning the matter could be settled by sometime in June 2009.

Prop. 8 will remain in effect in the interim.

On Nov. 5, the National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal filed suit against Prop. 8 on behalf of six individuals and Equality California. The city of San Francisco, joined by the city of Los Angeles and Santa Clara County (and later by several other cities and counties), filed a similar challenge, as did Los Angeles attorney Gloria Allred, who represents one Los Angeles couple.

Three other lawsuits also have been filed. One, filed Nov. 14 by leading African-American, Latino and Asian-American groups, claims Prop. 8 threatens the equal protection rights of all Californians. Another, filed Nov. 17 by the California Council of Churches and other religious leaders and faith organizations, asserts that Prop. 8 poses a severe threat to the guarantee of equal protection for all and was not enacted through the required process for such a dramatic change to the California Constitution. On the same day, prominent California women’s rights organizations filed a petition asking the court to invalidate Prop 8 because of its potentially disastrous implications for women and
other groups that face discrimination.

Said Lambda Legal: “Proposition 8 is an improper revision rather than an amendment of the California Constitution because, in its very title, which was ‘Eliminates the right to marry for same-sex couples,’ the initiative eliminated an existing right only for a targeted minority. If permitted to stand, Proposition 8 would be the first time an initiative has successfully been used to change the California Constitution to take away an existing right only for a particular group. Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights. According to the California Constitution, such a serious revision of our state Constitution cannot be enacted through a simple majority vote, but must first be approved by two-thirds of the Legislature.”

Over the past 100 years, the California Supreme Court has heard nine cases challenging legislative enactments or initiatives as invalid revisions of the state constitution. The court invalidated three of the measures.

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