CA Supremes to Decide Perhaps by the End of the Week

This commentary is the opinion of the author and may not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

November 11th, 2008

The Sacramento Bee is reporting:

The California Supreme Court could rule as early as this week on a lawsuit that seeks to invalidate Proposition 8, court spokeswoman Lynn Holton said today.

The decision this week would be whether to put a stay on the State’s enforcement of Proposition 8 until lawsuits could be heard. The lawsuits are based on the argument that Proposition 8 did not amend the Constitution, but rather revised it to do something materially different than it did before. In other words, this was not a change in how something is done but rather a change in an underlying principle of the Constitution: that all citizens are equal and that gay citizens cannot be excluded from the institutions of the State.

If the court finds that removing a fundamental right of a suspect population is a revision rather than an amendment, the process is different. It requires a two-thirds vote of the legislature before submission to the public.

Some scholars are of opinion that this suit is unlikely to prevail. But there are a few indicators – purely from observation and guesswork – that I find encouraging.

First, this court did not find, as some have, that the State did not provide adequate reason for excluding same sex couples. Rather, they found that gay persons are a suspect class and that all laws written for the express purpose of excluding gay persons or couples are presumed to be in violation of the Constitution and can only pass strict scrutiny if they are narrowly tailored to be the least restrictive means for achieving a compelling governmental interest.

Proposition 8 did nothing to invalidate the strict scrutiny requirements or equal protections provisions of the Constitution. And no one pretends that Prop 8 achieved even a vague government interest and it was inarguably greatly restrictive and broadly tailored. Thus, the proposition leaves the State Constitution in a state of internal conflict. The reading of this document now is “Gays cannot be excluded. Gays are excluded.” Such language is clearly nonsensical.

It leaves the legal scholar with a document that is not much different from that painted on the side of the barn in the Animal Farm, “All animals are equal, but some animals are more equal than others”.

Next, I’m going to speculate on how a judiciary views precedent. Regardless of the conclusions of a court, jurists hold them as concluded. Those who found other evidence to be compelling do not disagree with whether the court has decided or whether such decisions must be followed.

This court found by a 4-3 vote that gays are subject to strict judicial scrutiny and that marriage is a fundamental right. But – and this is the important part – even the three dissenting judges will uphold the position that marriage is now a fundamental right and that gays are now a suspect class. Once the conclusion is reached, it has the force of law and the backing of both supporters and dissenters.

That voters disagree about the fundamental nature of the right to marriage is not of importance to the dissenting judges. That 52% of voters don’t want gays to have equality does not make the suspect status of gays any less real – even to the dissenters. Those who sought to overturn the decision did not disagree with a few judges, but rather with the right of the court to determine who is included in the protections of the constitution – something that all jurists take seriously. Or so I hope.

Finally, and this may seem counterintuitive, these are not liberal activist judges. They did not come into their position with a “gay agenda” and use creative reading to find a “special right”. Six of the seven judges are Republicans, and they found that gay people are equal out of their understanding of constitutional protections. Their decision was based on their reasoning and contrary to what may have been initial prejudices. They will not be easily swayed by Party, ideology, or the whims of political winds. If they found marriage to be a fundamental right, a 52% vote of the populace is unlikely to cause them to no longer see such a right.

Now I may be unduly optimistic, but I have reason to hope that the California Supreme Court will invalidate Proposition 8. And I have a suspicion that the vote will be greater than 4 to 3.


November 11th, 2008

After reading the quote my heart started racing… hoping, awaiting.
As you, i’m incredibly optimistic about this. Which is strange as i never really thought that the voting on prop 8 was going to be in our favor.

Stefano A

November 11th, 2008

It’s worth noting (if you haven’t elsewhere and I missed/overlooked it) that the Anti-Defamation League, Asian Law Caucus, Bet Tzedek Legal Services, Japanese American Citizens League and Public Counsel have also submitted letters to the court stating in part:

“Proposition 8 threatens the permanent and abiding nature of the requirement that laws must apply equally to all — the most basic principle of democratic government…”

Another letter from the Bar Association of San Francisco joined by the Legal Aid Society-Employment Law Center, the Lawyers Committee for Civil Rights of the San Francisco Bay Area and the Impact Fund urging the court to strike down the measure because:

Proposition 8 would shatter existing principles of equal protection and fundamental rights, as well as the judicial branch’s role as final arbiter of these constitutional guarantees, it constitutes a revision of the Constitution…

I’m reservedly cautious but not without hope yet.

Liz D

November 11th, 2008

Background for some of you Box Turtlers — I’m a straight woman who fully supports same-sex marriage.

Personally, I am hoping that the CA Supes rule for revision.

If the Supes so rule, the job isn’t done. There is still work for we who support same-sex marriage to do. The work is to bring our fellow citizens to understand that marriage in the civil sense (the rights and responsibilities conferred by law) is distinct and fundamental to marriage in the religous sense.

I’m an atheist, but I wasn’t always. And there are some aspects of being a part of a religious community I miss — like the idea of “our brothers and sisters in Christ”. Through that lens, some of our brothers and sisters in Christ view the sacrament aspect of marriage as foundational.

The job that remains to be done is to lead our brothers and sisters to understand that no, the legal aspect is foundational, because our society shelters, protects, and provides for all kinds of folk, believers in Christ, believers in other deities, and believers in no deities at all. Our common ground is the law, not belief.

This involves a fundamental change in understanding for many folk. If we just rest with the right to marry, without an endorsement of those rights from many, it is a fragile rest.

Daniel Gonzales

November 11th, 2008

As an architect the most frequent laws I read is the building code which often contradicts itself — and when it does the more specific regulation is followed.

Regarding the contradiction of “suspect classes can not be excluded” versus “gays are excluded” I’m going to play devil’s advocate and say Prop 8’s language is more specific and thus applies.

Timothy Kincaid

November 11th, 2008

Thank you, Liz D.

Winning rights is only half the battle. Winning hearts and minds is the rest.


November 11th, 2008

I believe that this is a battle that will be won….eventually. Though maybe not in my life time…we will have a President and his husband in the White House!


November 11th, 2008

Just to clarify, the California Supreme Court usually issues its opinions and orders on Monday and Thursday. So don’t assume you’ll be in suspense until Friday.


November 11th, 2008

Despite my really bad feeling that Prop. 8 would win, I had my hopes up that voters would reject it. I’m having trouble being hopeful this time. Apparently, some legal experts have already been saying that the lawsuit doesn’t have a good chance of winning.


November 11th, 2008

A random thought … dealing with legality and public perception …

If the Supreme Court decides to revisit this and declare in favor of marriage equality again, I think that makes all of the demonstrations going on in California and across the country much more important and powerful.

Because if the Supreme Court does decide in favor of equality, there is sure to be another cry of outrage about the courts “subverting the will of the people” again.

But just as the millions of annoying yellow ‘Yes on 8’ signs and people standing on street corners served to reassure, as they’ve admitted, that hey, it’s okay for you to be anti-gay! No need to be ashamed! … these demonstrations will show that the matter is not by any stretch of the imagination a consensus, that there are just as many people willing to stand up FOR equality.

I don’t know whether justices are able to make decisions without concern over public reaction on such a hotbed issue, but if they aren’t, I hope they’ll keep that in mind.

Lynn David

November 11th, 2008

I’ve been looking at this every which way, from what Justice George said to Spiegel to how the new suits are worded (it’s not a revision), and I have turned exceedingly pessimistic about the ruling. I have to be, I cannot be disappointed like I was on Tuesday night to hear all 4 issues went against us.

Paul In SF

November 12th, 2008

If the Supreme Court decides to revisit this and declare in favor of marriage equality again, I think that makes all of the demonstrations going on in California and across the country much more important and powerful.

You have a very good point. I would also like to point out that even though the justices will do their best to make their decision based simply on the law, it is highly unlikely that they are not aware of the fact that the suspect class has felt so much pain from the ballot decision that we have taken to the streets EVERY DAY since.

Like many here I have been involved in fighting for our rights for a long time – in my case since 1970. In those four decades I have seen our movement suffer many setbacks, but I don’t recall ever seeing such a long, continuous reaction. I find it mind boggling, and very, very gratifying.

Ben in Oakland

November 12th, 2008

Personally, I would rather that the supreme Court does not overthrow the “will of the people”. Now before everyone cries “Stone him”, hear me out on it.

We have to win hearts and minds if we are truly going to progress. The incompetent, irrelevant, and immaterial no on 8 campaign won very few of either becuase of its insistence that this had to be argued from the closet.

Though it would be expensive and difficult, I think the battle could be won decisively if the battle is fought in the open.

No more vague appeals to tolerance and liberty. Here are real people and real families and kids, and this is how they are affected by this. Here are real ministers that support gay marriage.

I wouldn’t mind a campaign that mentions freedom of rleigion for veryone, but is not built on it. and i have no objection to anti-mormon sentiment, as long as it isn’t a direct attack on their religion. I’m not sure how it would play out, but the basic idea would be that weird ocnservative religions don’t own G.

We need a campaign, probably funded by foundation money, to encourage gay people to come out to their fmailies starting ASAP. not this once every october thing, but in the next two years leading to a new eleciton.

The legislature should put a repeal on the ballot (saves a lot of money and itme) combined with language that insures (not that it needed to be) freedom of religion and freedom of speech and deals with the children and school issue. They have nothing left to argue with if that is done.

Speakers bureaus and community outreach, totally lacking in this campaign, should begin ASAP as well. I wanted to go out and speak to groups, but the campaign was totally uninterested. big mistake.

We should have own this battle, and we nearly did, despite the lies and the hatred. What if we had acutally conducted the campaign in the right way.

Mark F.

November 12th, 2008

“The legislature should put a repeal on the ballot (saves a lot of money and time) combined with language that insures (not that it needed to be) freedom of religion and freedom of speech and deals with the children and school issue. They have nothing left to argue with if that is done.”

Good idea.


November 12th, 2008

For the record, the initiative process is intended for citizens to put propositions (statues or amendments to the constitution) on the ballot. Section 8.a of the CA Constitution specifies: “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”

While the legislature “may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors,” Prop 8 is an amendment, rather than a statute. I think that means the only recourse the legislature has is to propose to re-amend the constitution. This requires a two-thirds majority of both legislative houses to place the amendment on the ballot. I’m not sure how easy it would be to muster the two-thirds majority. At this point I think there’d be quite a lot of energy which could be directed towards simply gathering the signature, and the signature gathering process itself can be an opportunity to educate people.

Furthermore initiatives can address only a single subject. Section 8.d reads: “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” So, putting aside whether it would be allowable to place redundant measures on the ballot at all, you can’t wrap all of that other stuff into an initiative to overturn Prop 8. As Ben points out, those freedoms are already guaranteed, we just need to emphasize that fact.

Ben in Oakland

November 12th, 2008

So you put up five initiatives. No big deal. Initiative 16 says “Same sex marriage shall have no effect on freedom of rleigion.” #17 says “blah blah freedom of speech.”

Jason D

November 12th, 2008

I don’t think that will work Ben, I think it will lead to even more confusion.

Can you imagine that campaign? Yote yes on Props 11, 17, 18, 24, and 37. What do we do if half of them pass, but the other half don’t? Or if the one regarding overturning prop 8 is the only one not to pass?

I get what you’re saying about the hearts and minds of the people.

But right now is the perfect time for the court to rule in our favor. The opposition is TAPPED. They had mormons giving up their vacation and college money to get this puppy across the table. They do not have the funds for another war.

If the court rules in our favor, we need to press on as if they didn’t. We need a campaign to show the public just how very much gay marriage will not hurt them. We need to let them see that their religious freedom is not in jeopardy. And I think it would be good of us to still push for those not-interfere with education, relgious rights props all on our own. What would that say if gays pushed for an amendment, bill securing religious freedom?
We should NOT wait until another prop rears it’s ugly head, because we all know it will. If the court rules in our favor we need to be proactive and get the message out that our freedom doesn’t endanger their lives, families, or anything else.

I say regardless of the courts decision the gay community has a lot of reassuring of the public to do. We have to work on the winning of hearts and minds regardless of the court decision, and even moreso if it rules in our favor.


November 12th, 2008

Yeah, we’ve got enough stupid initiatives in California as it is. We certainly don’t need a bunch of confusing, redundant ones! Not to mention the added time and expense of getting all of them onto the ballot. If we go this route, we just need one measure and we need to put all of our energy into passing it.

As JasonD points out, the opposition won this battle, but just barely. Now Prop 8 supporters are taking a lot of heat and, in many ways, on the defense. They’re realizing that a lot of folks in California and around the country see them as mean-spirited bigots. The hard-core will only get more hard-core, but the more moderate supporters may actually begin to realize how much marriage means to us and how wrong Prop 8 was.

A court decision in our favor means same-sex marriage will be legal at least until… well basically forever in California because two-thirds of the legislature will never vote to revise the constitution to rescind same-sex marriage. I’d much rather focus on changing hearts and minds with the force of law behind me. I’d rather show the doubtful what legal marriage looks like in practice. Look how quickly opposition to same-sex marriage dropped off in Massachusetts as people just got used to the fact that there were gay folks getting married.

Charles Voss

November 12th, 2008

Charles in Chico
Something positive has come about from ‘No On 8″ being passed. Once again, I see gays, lesbians, and our many friends and supporters coming together as one to defeat this injustice. Before Prop. 8 was put on the ballot, it seemed as if we were all rather apathetic.
The sleeping lion has been awoken.


November 12th, 2008

With all due respect Ben I think you’ve missed the main point of why we MUST challenge Proposition 8 in the courts.

This is about WAY more than same-sex marriage. This is about whether or not we will, in the future, allow a simple majority of citizens to change the fundamentals of the California state constitution to deny a suspect and vulnerable minority their constitutional right to equal protection. This is about whether or not our courts will be allowed to continue in their traditional and constitutional roles of interpreting the Constitution AND protecting minorities from the tyranny of the majority. This is why the Japanese-American organization, the Jewish organization, the Defamation League and other groups who represent vulnerable and suspect minorities are joining this legal challenge. They fear the precedent that this would set in threatening the civil rights of other minorities who may fall out of favor of the majority (like through war). Don’t forget that we were rounding up Arabic men RANDOMLY from the streets after 9/11. We are not at all beyond bringing back internment camps if all the right circumstances came together in just the right way. The last eight years have made it terribly clear to me that we are still capable of doing things, out of fear, that I thought we would never see again in this country.

Please don’t allow yourself to miss the forest for the trees on this important issue. Yes it’s about same-sex marriage equality today but if we don’t LEGALLY challenge this unconstitutional process of changing the foundational principles of the state constitution with a simple referendum requiring only 50% + 1 rather than following the proper steps for REVISION then we are leaving ALL vulnerable minorities susceptible to future discriminatory whims of the majority.

I too would prefer that we could have and would have won this by a popular vote, if only to silence the cries of “judicial tyranny”. However, there is a major problem with this strategy going forward. Even if we go that route and win by majority vote in 2012 it won’t fix the serious problems created by passing Prop 8. It won’t reestablish the courts as the final arbiters of the constitution and it won’t legally establish the fact that the constitutional rights of minorities to equal protection should not, can not and will not be subject to mob rule.

For these reasons I believe we not only should but we MUST fight this in the courts.


November 12th, 2008

Besides, what happens if we do win same-gender civil marriage in 2012.

What’s to stop sentiment from turning again in 2016 and then losing this civil right again.

And on, and on and on.

Minority civil rights cannot and should not be decided by a majority vote.

Why call them a “minority” to begin with!?


November 13th, 2008

Why can’t they just revoke the whole “Ballot Initiative” fiasco in CA?


November 13th, 2008

Attmay-That would require a revision of the constitution, which is a lot of work. It would be easier to merely amend the constitution to raise the bar for passage or qualification of initiatives, which I think would be great. Ditching the whole initiative process would be a lot tougher and ultimately would remove a potentially valuable democratic tool. The system is not working well now, but that doesn’t mean it couldn’t work better.

Michael Ejercito

November 14th, 2008

First, this court did not find, as some have, that the State did not provide adequate reason for excluding same sex couples. Rather, they found that gay persons are a suspect class and that all laws written for the express purpose of excluding gay persons or couples are presumed to be in violation of the Constitution and can only pass strict scrutiny if they are narrowly tailored to be the least restrictive means for achieving a compelling governmental interest.
With Prop. 8 in the constitution, there is a compelling government interest to define marriage as between a man and a woman- compliance with the state constitution, a compelling a government interest as any.

However, since Prop. 8 only . defines a single word, it will not affect the issue on whether courts can rule on whether or not same-sex couples have constitutional entitlements to tax, inheritance, estate, power-of-attorney, hospital visitation, and other privileges afforded to married couples on the basis of equal protection.

On a side note, the Florida amendment also banned civil unions. A Florida-type amendment, if it were ever adopted in California, may indeed be a revision.

Michael Ejercito

November 14th, 2008

Minority civil rights cannot and should not be decided by a majority vote.
You mean like protection from cruel and unusual punishment.

The Supreme Court ruled that it was a minority right, and its scope was modified by an amendment.

Timothy Kincaid

November 14th, 2008

Michael Ejercito,

With Prop. 8 in the constitution, there is a compelling government interest to define marriage as between a man and a woman- compliance with the state constitution, a compelling a government interest as any.

You misunderstand the nature of a compelling interest. It has to be a interest of the people, not an interest of the law. Also, your logic is circular: ‘Prop 8 is not in conflict with the Constit because it complies with itself’. That is not likely to be a consideration of the court.

And the courts have already found that “a word” cannot be used to separate gay citizens from heterosexual citizens. This is old ground.

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