California’s Legal Tangle

News Release
For Immediate Release

November 20, 2008

Log Cabin Praises California Court’s Decision to Hear Prop. 8 Challenge

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Log Cabin Republicans promotes legislation to provide basic fairness for gay and lesbian Americans and works to build a more inclusive GOP. The 30-year old organization has state and local chapters nationwide, a full-time office in Washington, DC, a federal political action committee and state political action committees.

EQUAL PROTECTION:  It is how California Does Business.

From the Los Angeles Times:

“Gay rights lawyers have argued that the measure took away the ability of California’s courts to ensure equal protection for minorities who have historically suffered discrimination.

S168047/S168066/S168078 [The the exact ruling granting the WRITS click to the left]

To summarize:

The motions for judicial notice are granted.

The request for a Stay of Proposition 8 is denied.

Respondent Secretary of State Debra Bowen’s request to be dismissed is granted.

The motions to intervene by the Official Proposition 8 Proponents are granted.

The motions to intervene by Campaign for California Families (Randy Thomasson) is denied.

MORE IMPOERTANTLY

The State of California, the Attorney General, the State Registrar of vital Statistics, and the Deputy Director of Pubic health are ORDERED TO SHOW CAUSE before this court when the above entitled matters are on calendar, why the relief sought by petitioners should not be granted.

The issues to be brief and argued in these matters are as follows:

(1) Is Proposition 8 invalid because it constituties a revision of, rather than an amendment to the California Constitution [BLOGGER’S COMMENT-ALTERING EQUAL PROTECTION SO THAT IT DOES NOT APPLY TO THE LGBT COMMUNITY SOUNDS LIKE A REVISION TO ME]

(2) Does Proposition 8 violate the separations of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is the effect, if any on the marraiges of same sex couples performed prior to the adoption of Propostion 8?

The responses are to be filed by December 19, 2008.

The replies are to be filed by January 5, 2009.

Any application for an amicus brief, accompanit=eid by the proposed brief is due by January 15, 2009.

Any reply to any amicus brief is due by January 21, 2009.

Moreno joined in this order except that he woud have granted the stay immediately. 

Kennard (concurred in original decision) did not sign the decision because she would deny these petitions without prejudice to th filing in the Supreme Court of an appropriate action to determine Proposition 8’s effect, if any, on mariages of same-sex couples performed before Propostion 8’s election.

The decision was signed by six (6) out of seven (7) justices including Chief Justice George (author of the May 15, 2008 decision), Associate Justice Baxter (dissented in origianal decision),  Associate Justice Wedgar (concurred in origianal decision), Associate Justice Chin (dissented in original decision), Associate Justice Moreno (concurred in original decision), and Associate Justice Corrigan (dissented in original decision)

Oral argument is expected to held as early as March 2009 with a decision expected just in time for STONEWALL 40.

Good work.

If permited to stand as an amendment, Proposition 8 would establish that voters may use the initiative process to decide that a group is no longer entitled to equal protection [emphasis added] under the law, but instead that the government must discriminate against them on the basis of a suspect classification.  The implications of that precedent would be devastating, for it would enshrine the concept that the majority may explicitly tyrannize the minority with relative ease and meager deliberation.  This undermines a bedrock concept and capsizes a core judicial function.”

To read more click HERE

S168332
CALIFORNIA COUNCIL OF CHURCHES, et al., Petitioners v. MARK B. HORTON, et al. [click to read]

• Petition for Writ of Mandate

Simply put: Proposition 8 is an improper revision to the California Constitution because it fundamentally changes the basic structure in California’s Government by changing how it does business with its people.

WHAT???  The unintented consequence of Proposition 8 is that it changes the unalienable core fundamental right of the California Constitution: EQUAL PROTECTION.  Yes, it is that simple and we have to that GOD for that.  Prop 8 changes the way California does business with its people because it changes the way EQUAL PROTECTION operates in California for everyone. Yup, Equal Protection, it is how California operates.

Isn’t that a HOOT!

NOTE TO THE CALIFORNIA SUPREME COURT:Issue the Stay on Wednesday, January 18, 2008 and let us return to the “new normal.”

GAME OVER!

Have a nice day.

THE STAY 

Do Not Bet The House on It but I believe that a stay is forthcoming and would not be limited to ensuring recognition of existing marriages of same-sex couples because in California, in looking at injunction law, one balances the harm. Here, accepting that marriage is now an “inalienable right” and by invoking the memory of Del Martin, the irreparable injury that someone could die before being able to marry is an example. The Justices will probably see a “likelihood” of such harm and would probably view the continued denial of an “inalienable right” ”equality” and “dignity” as itself sufficient irreparable injury to warrant the granting of the stay.  [EXCELLANT AMICUS BRIEF ON WHY STAY SHOULD BE ISSUED]

INDEPENDENT RIGHT TO MARRY

Please if there is some precedent where California destroyed the “inalienable right to marry” for a minority in some fashion, please respond and let me know.  I have searched and searched and it seems like once the “inalienable right to marry” exists, it exists by its terms.  According to Webster’s, it is incapable of being alienated, surrendered, or transferred by its very terms.  “< Inalienable rights>“ 

 ”Inalienable” is a term of “permanence” and exactly what the constitution is referring to when it discusses lasting rights.  In an ironic twist, I believe that there is absolutely NO case, mechanism, or precedent on the removal of the “inalienable right to marry” by a majority as to a minority because it would violate Equal Protection.  This is the first instance where the majority is attempting to place discrimination into the constitution.  In my opinion, (1) the “inalienable right to marry” cannot be changed for a minority by ANY manner (i.e. revision or amendment) by the majority under an Equal Protection analysis.  [Noted earlier: please provide legal precedent you may have on point to support the exact position that this “inalienable right”, once granted can be subject to a vote.  (See 43 746 Cal.4th 757, 781.) 

REVISION VERSUS AMENDMENT 

Personally, I never would have started with the assumption that the “inalienable right of marriage” of a suspect class can be removed though the revision process because I see absolutely no controlling California Legal Precedent. My position is that a “revision” would not even be appropriate for the removal of an “inalienable right to marry” regarding a suspect class.  My position is that the entire right of “marriage” would have to be elimianted for all.   

It is true that the May 15, 2008 Court removed this “inalienable right” from being subject to the statutory initiative process [voter driven constitutional initiatives were not at issue in May]. ”[T]he California Constitution imposes no constitutional bar to a legislative revision of the marraige statutes consistent with the requirement of voter approval.”  (In Re Marriage Cases (2008) 43 Cal.4th 757, 849.)

 Assuming the “inalienable right to marry” can be voted away,  I agree with the brief by LA City/San Francisco/Santa Clara position that the majority cannot eliminate the rights of the minority, because if equal protection is only at the sufferance of the majority, there is no such thing as equal protection because was not brought as a revision. 

As for the proponent’s position, it is based on an flawed interpretation of when one can narrow the scope of a particular constitutional right by way of an amendment.  Yes, in one case, [A DEATH PENALTY CASE] the Court permitted constitutional rights to be reduced by way of amendment and not revision.  But the reduction of rights applied to all Californians equally and did not single out a recognized minority. People v. Frierson (1979) 25 Cal.3d 142, 187 approved a voter initiative imposing the death penalty and found that it did not violate the state constitution because it was an amendment and not a revision.  The substantive difference here is that in Frierson, the Court permitted the change as an amendment because it did not single out any particular minority or class of people (and provided for judicial review).  Here, the situation is different because Proposition 8 asked the voters to remove a fundamental right for a class of citizens based on a suspect classification without any judicial review. 

Consequently, Frierson is not on point because it applied to all Californians and permitted judicial review.  Proposition 8 only applies to a suspect class and fails to provide for judicial review (i.e. no checks and balances).  In my opinion, Proposition 8 allows a majority to take away a fundamental right from a minority but in these circumstances the minority group should be entitled to the greatest judicial protection under the California Constitution.  Proposition 8 removes the courts from the process and they no longer have a role in the constitutional process.  In essence, Proposition 8 destroys “checks and balances” because it removes the judiciary from their traditional role of protecting minorities.  To permit Propositin 8 is to permit the beginning of the unraveling of civil rights as we know it.  

Proposition 8 Supreme Court Filings

S168047
KAREN L. STRAUSS, et al., Petitioners v. MARK B. HORTON, et al.

• Immediate Stay Request
• Petitioner’s Exhibits
• Petitioner’s Motion for Judicial Notice
• Amended Petition
• Motion to Intervene
• Motion to Intervene by Official Proponents
• Request for Judicial Notice
• Preliminary Opposition
• Preliminary Response from the Attorney General 
• Letters submitted in support of petition:
  The Bar Association of San Francisco et al.
  Forty-Four Members of the State Legislature
  Anti-Defamation League et al.
  Beverly Hills Bar Association et al.
  Los Angeles County Bar Association
  Sacramento Lawyers for Equality of Gays and Lesbians et al.
  Manning & Marder, Kass, Ellrod, Ramirez
  Constitutional Law Center (Monterey College of Law)
  Hastings College of the Law
  Lieff, Cabraser, Heimann & Bernstein 
• Letters requesting denial of petition and request for stay:
  The Pacific Justice Institute
  Center for Constitutional Jurisprudence (Chapman University Law)
  Steven Meiers
  Kingdom of Heaven
  American Center for Law and Justice

• Immediate Stay Request
• Amended Petition
• Motion to Intervene
• Motion to Intervene by Official Proponents
• Preliminary Opposition
• Preliminary Response from the Attorney General
• Debra Bowen’s Preliminary Response
• Letter from counsel for petitioners in response to letter submitted by Pacific Justice League 
• Letters submitted in support of petition:
  Beverly Hills Bar Association et al.
  Los Angeles County Bar Association
  Sacramento Lawyers for Equality of Gays and Lesbians et al.
  Manning & Marder, Kass, Ellrod, Ramirez
  Constitutional Law Center (Monterey College of Law) 
• Letters requesting denial of petition and request for stay:
  The Pacific Justice Institute
  Center for Constitutional Jurisprudence (Chapman University Law)
  American Center for Law and Justice

• Petition for Writ of Mandate
• Amended Petition
• Motion to Intervene
• Motion to Intervene by Official Proponents
• Judicial Notice
• Preliminary Opposition
• Preliminary Response from the Attorney General 
• Letters submitted in support of petition:
  Beverly Hills Bar Association et al.
  Los Angeles County Bar Association
  Sacramento Lawyers for Equality of Gays and Lesbians et al.
  Manning & Marder, Kass, Ellrod, Ramirez
  Constitutional Law Center (Monterey College of Law) 
• Letters requesting denial of petition and request for stay:
  The Pacific Justice Institute
  Center for Constitutional Jurisprudence (Chapman University Law)
  American Center for Law and Justice

• Petition for Writ of Mandate
• Motion to Appear as Counsel Pro Hac Vice 
• Letter submitted in support of petition:
  Sacramento Lawyers for Equality of Gays and Lesbians et al.

• Petition for Writ of Mandate
• Motion for Judicial Notice in Support of Petition

• Petition for Writ of Mandate

In a surprising twist, the Attorney General argues that it is the Supreme Court should decide whether Proposition 8 is a revision or an amendment. 

The stay should be denied as to post-election marriages.  The AG argues that marriages should not performed pending the outcome of the trial. 

Brown also agrees that the Supreme Court has original jurisdiction to hear the matter. 

More importantly, “Although the Attorney General opposes the issuance of a stay order, nothing in this preliminary opposition should be construed to suggest that the Attorney General questions the validity of any same-sex marriage that occurred after the effective date’ of this Court’s decision in In re Marriage Cases, but before November 5, 2008.”

8City and CountyOpp.pdf

8StraussOpp.pdf

8Tyler - SOSOpp.pdf

8Tyler - AGOpp.pdf

Christian Science Monitor (USA)

Copyright 2008 The Christian Science Monitor

November 14, 2008

Section: OPINION

California’s same-sex marriage case affects all of us

Kermit Roosevelt
Philadelphia What now for California? In May, its Supreme Court announced a right to same-sex marriage. Gays and lesbians rushed to take advantage of the opportunity; by early November, 18,000 such marriages had been performed. But on Nov. 5, they stopped. By a 52-47 percent margin, California voters approved Proposition 8, an amendment to the state constitution prohibiting same-sex marriage. Immediately, gay rights supporters filed lawsuits asking to overturn the ruling. Critics are calling Proposition 8 an illegal constitutional “revision,” fundamentally altering the guarantee of equality - not a more limited “amendment.” This suit raises a serious question: When should a majority have the power to take away a constitutional right granted by a court?

It’s a question that forces us to think about why we have constitutional rights in the first place, and why they are enforced by judges. But it is not simply a theoretical puzzle. All of us enjoy constitutional rights, and most of us are at some point in a minority. All of us could be affected. American constitutional practice has generally been to expand rights over time, both by amendment and by judicial decision. Amendments to the federal Constitution, for example, gave women and minorities the right to vote. Judicial decisions have expanded the constitutional guarantee of equality to protect more and more groups. Some of these decisions remain intensely controversial, but none have been overruled by a federal amendment. Of course, amending the federal Constitution is difficult. It requires approval by “supermajorities”: two-thirds in the House and the Senate and three-quarters of state legislatures. Federal rights cannot be taken away by a simple majority vote. Because of this requirement, judicial decisions enforcing the federal Constitution’s equality guarantee have followed a relatively consistent pattern. At one point in time, a particular practice - say, the racial segregation of public schools or the exclusion of women from the practice of law - is so widely accepted that it seems beyond challenge. Judges are not likely to strike the practice down, and if they did, the backlash might well be strong enough to create a constitutional amendment. Some time later, the practice becomes controversial. It still enjoys majority support - otherwise it would likely be undone through ordinary lawmaking - but it no longer has the allegiance of a supermajority. It is at this time that judges tend to act in order to protect the freedoms of the minority, striking down the practice as unjustified discrimination. The decision may be intensely controversial. It may even be the target of majority disapproval. But because there is no longer a supermajority, the decision is safe. As attitudes evolve, the practice comes to seem outrageous. Almost no one, nowadays, would argue for racial segregation of schools or a ban on female lawyers. At this point, the judicial decision is no longer controversial. If a majority could overrule a judicial decision, the process would frequently be stopped by that majority vote. Judicial interventions against discrimination would just not succeed. Regardless of where you stand on same-sex marriage, what’s troubling for US citizens in the California case is the idea that an equality guarantee could not be effectively enforced against the will of a majority. The point of such a guarantee is precisely to protect minorities from discrimination at the hands of a majority. It would be somewhat surprising, then, if California allowed judicial decisions enforcing the state equality guarantee to be overruled by a simple majority vote. In fact, as the gay-rights supporters’ suit indicates, it is not clear that it does. Under the California constitution, “amendments” can be approved by a simple majority vote. But “revisions,” which make substantial changes, require approval by a supermajority - two-thirds of both houses of the legislature - before being submitted to voters. Supporters framed the same-sex marriage ban as an amendment, when really it has the makings of a revision. It makes sense to require supermajority support to overrule a judicial decision that grants rights to a minority. It shows that the judges were so out of step with society that they were probably wrong. But a simple majority does not show that, and the constitution would not afford meaningful protection if it could be overruled at the will of the majority. As the opposition to same-sex marriage in California has shrunk, simple majorities should not be able to reverse decisions made in the name of equality. This is not an argument that the California court was correct. The battle for public opinion goes on. But letting the court’s decision stand against the disapproval of a simple majority is not only sensible, it protects the minority rights of future generations. Unpopular decisions are the price of constitutional rights. * Kermit Roosevelt teaches law at the University of Pennsylvania’s law school.

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/11/13/BAMU1449RR.DTL
Thursday, November 13, 2008 (SF Chronicle)
State high court shows interest in anti-Prop. 8 suits
Bob Egelko, Chronicle Staff Writer

   (11-13) 18:17 PST SAN FRANCISCO — The California Supreme Court has asked
state Attorney General Jerry Brown to reply by Monday to lawsuits
challenging the voter-approved ban on same-sex marriage - a sign that the
justices are taking the cases seriously and will not dispose of them
quickly.
   Two groups of gay and lesbian couples and local governments led by the
city of San Francisco filed the suits a day after the Nov. 4 election,
when Proposition 8 passed with a 52 percent majority.
   They argue that the initiative, a state constitutional amendment, violates
other provisions of the California Constitution by taking rights away from
a historically persecuted minority group and stripping judges of their
power to protect that group. The couples’ suits contend that Prop. 8 makes
such fundamental changes that it amounts to a constitutional revision,
which can be placed on the ballot only by a two-thirds vote of the
Legislature.
   Brown has said he will defend Prop. 8 in court while also supporting the
legality of an estimated 18,000 weddings performed under the court’s May
15 ruling legalizing same-sex marriage.
   That ruling declared that state law defining marriage as being between a
man and a woman violated the state Constitution. Sponsors of Prop. 8
contend that the initiative - which declared that only marriage between a
man and a woman is “valid or recognized in California” - would invalidate
all existing same-sex marriages.
   The filing the court requested from Brown’s office will not address the
ballot measure’s validity, but will focus instead on the initial questions
of whether the justices should accept the suits for review - and, if so,
whether they should suspend Prop. 8 while they decide the case, said the
state’s lawyer, Christopher Krueger, a senior assistant attorney general.
Suspending Prop. 8 would allow same-sex marriages to resume.
   ”I think it’s fair to infer that the court is looking at these (cases)
very carefully,” Krueger said. Usually, he said, when plaintiffs ask the
state’s high court to take up their case directly without first filing in
a lower court, the justices dismiss the suit without asking the other side
for a reply.
   Krueger declined to say whether Brown’s office would ask the court to
dismiss the suits without further review. He noted, however, that Bill
Lockyer, the attorney general when gay-rights advocates first challenged
the marriage law, invited the state Supreme Court to review the issue in
2006 even after an appellate court had upheld the ban on same-sex
marriage.
   Although the court’s request, issued Wednesday, did not mention any issues
in the suits or state the justices’ views, “it indicates that the Supreme
Court sees the seriousness and immensity of the issue, and before it takes
any action it wants to hear from Jerry Brown,” said Irving Greines, an
appellate lawyer in Los Angeles.
   Greines filed papers Wednesday on behalf of the Beverly Hills Bar
Association and California Women Lawyers supporting the legal challenges
to Prop. 8 and urging the court to accept the suits for review. On
Thursday, the conservative Pacific Justice Institute submitted a letter
arguing that the court lacks authority to issue a stay that would suspend
a voter-approved state constitutional amendment.
   The lead case is Strauss vs. Horton, S168047.

E-mail Bob Egelko at begelko@sfchronicle.com. ———————————————————————-
Copyright 2008 SF Chronicle