Prop 8 legality being tested


Proposition 8, a voter-passed addition to the California constitution that overturns the ruling of the state’s Supreme Court earlier in the year which ordered same-sex to be allowed under the equal protection clause, is being challenged by groups in California that claim it is an unconstitutional response.

There have been a number of reports of the hearings.

According to the Los Angeles Times the hearings didn’t go well for opponents of the ban:

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

The long-awaited hearing, which came as dueling demonstrators chanted and carried banners outside, was a disappointment for gay rights lawyers.

The LA Times also reports on the scene outside the courtroom as opponents and proponents of the ban faced off against each other.

As the San Francisco Chronicle points out, there is a sense from the first day that the Court would rule that same-sex marriages which took place between the Court’s order this past spring and the ballot initiative this fall were valid.

all seven [justices] appeared to agree that the 18,000 same-sex couples who married before Prop. 8 passed would remain legally wed.

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5 Responses to "Prop 8 legality being tested"
  1. Nicholas, you post this as if there will be more. The first day was the only day of the hearing. Just a little over 3.5 hours of argument from all sides. Now the high court justices have 90 days in which to render their decision.

    Thank you, David. Post has been corrected. -- eds.

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  2. It almost makes me smile, if it were not so sad.

    If the 18,000 marriages remain valid, then those who didn't get married can claim discrimination based solely on calendar dates.

    And it will go on and on until finally the Mormons and Catholics will just get tired of it.....and then justice can finally prevail.

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  3. There are parallels, John-Julian.

    The Deceased Wife’s Sister Bill "which became an Act exactly 100 years ago, did what it said on the tin. It allowed a man to marry his dead wife’s sister. This had been permissible — if problematic — until 1835, when the Government had brought civil law into line with canon law, outlawing all marriages forbidden by the Table of Kindred and Affinity in the Book of Common Prayer."

    You may be familiar with a similar case regarding Henry VIII. His first marriage was to the widow of his brother which was contrary to canon law of the time. The Pope averted his eyes. Some are above the law.

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  4. I was struck by the Catholic Archbishop of San Francisco's assertions, echoed by Kenneth Starr yesterday that Prop 8 should stand simply because never, in all its 160-year history, has California permitted same-sex marriage.

    One could have made a similar argument fifty years ago that California, in all its 110-year history, had never permitted a marriage between different races. And so my marriage would have been, by majority agreement in all likelihood, forbidden.

    Variations on the "It is because I say it is" arguments.

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  5. The sound bite is it may be good or bad that the court finds itself in uncharted waters with no precedents to look at. This is a constitutional debate about the balance of the three different branches of government. The problem with the California initiative system is that the majority may through an initiative deny the courts their role of protecting minorities and enforcing equal protection. The plaintiffs argued this initiative or amendment was really a revision because it contradicts the principle of equality, found in many places in the California constitution. Attorney General Jerry Brown's representative argued Prop 8 is an amendment but an invalid one because it removes an inalienable right from a minority. Both the plaintiffs and the Attorney's General's office see the problem as a denial of minority rights, especially after the California Supreme Court ruled last year that marriage is a fundamental right and that one must have the right to choose one's partner. The Court had also ruled for the first time that gays are a suspect class, a minority who have been singled out for discrimination and therefore in need of protection from the courts. Ken Star admitted under harsh questioning that he sees no limit to the power of the majority to take away rights from minorities. Many civil rights groups are concerned that any unpopular group could be denied their rights in California through the initiative process. The Court would have to reach a consensus about how to craft a solution and it is by no means clear they will be able to do so. They would rather not have to deal with this and would have much preferred to give civil unions to all but the problem with civil unions is that heterosexuals cherish marriage and would not want to give it up and civil unions would have to be for all if they were to survive an equal protection test. Civil unions lack the status and stature of civil marriage. They would have preferred that the state not be in the marriage business at all but because it is civil unions are not a solution.

    We will know in 90 days what their decision is. Meanwhile it is necessary to continue organizing for marriage equality. If the decision is negative, then a ballot initiatve would be the way to reverse Proposition 8.

    The 18,000 couples who married will most likely remain married. So they will be anomalies within segregation. As more people get to know them, a slow process of education will take place.

    Gary Paul Gilbert

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