California Supreme Court to decide fate of Prop. 8 same-sex marriage ban - ContraCostaTimes.com

California Supreme Court to decide fate of Prop. 8 same-sex marriage ban - ContraCostaTimes.com


By Howard Mintz


The California Supreme Court moved swiftly Wednesday to tackle the latest legal showdown over gay marriage, agreeing to consider three lawsuits that challenge the legality of Proposition 8's abolition of same-sex weddings.

At the same time, the state's high court rejected a bid to put Proposition 8 on hold while the legal struggle unfolds, postponing indefinitely any new wedding vows for gay and lesbian couples. The Supreme Court indicated it is likely to rule by June.

The justices' two-page order sets the stage for another historic courtroom collision that may decide whether same-sex couples can resume marrying in California, as well as determine the legal status of thousands of gay and lesbian couples who

Even though the lawsuits did not address the validity of existing gay marriages, the Supreme Court made a point of asking all sides to offer arguments on the question, suggesting they do not want to leave any legal uncertainties when the case is decided.

Couples who have either married or are hoping to marry greeted Wednesday's news with apprehension and cautious optimism the Supreme Court may preserve their rights.

For Lisa Miller and Paula Jabloner of San Jose, news that the Supreme Court would reconsider the validity of their marriage, four days before Proposition 8 passed, was disquieting.

"It would just be a shame for that to be taken away," Miller said.

But Jamie McLeod, a Santa Clara City Council member who hopes to marry partner Vanessa Cooper, was "delighted" the Supreme Court may give her the chance.

"The polls looked like it was going to be close, but I thought we'd be OK," McLeod said of waiting until after the election. "We didn't take the time to say, 'Hey, if this passes we may lose this opportunity.' "

Meeting in private at their weekly conference, the justices voted to review arguments that the same-sex marriage ban was an improper method of amending the California Constitution and interferes with the ability of the judiciary to protect minority rights. The same Supreme Court narrowly struck down California's prior ban on gay marriage in a ruling this spring, but Proposition 8 trumped that decision.

Randy Thomasson, a leading gay marriage opponent, warned that the seven justices — six of them Republican appointees will confront a "voter revolt" if they overturn Proposition 8. Gay marriage foes have warned that they might mount a recall campaign against justices who vote to strike down another ban on same-sex marriage, rekindling memories of a 1986 voter backlash over the death penalty that removed three justices from the court — that time in a retention


But for the most part, all sides indicated Wednesday they are prepared for the court to settle the matter.

"We're very happy they took the case and are going to resolve these issues quickly,'' said Anthony Pugno, Proposition 8's lead attorney.

Lawyers for a host of civil rights groups, same-sex couples and local governments, led by San Francisco and Santa Clara County, also expressed relief the court agreed to consider their lawsuits. Santa Clara County Counsel Ann Ravel said it was critical to protect the equal protection rights of gay couples.

Attorney General Jerry Brown, who earlier this week opposed a stay because it would generate too much legal confusion, has not taken a position on the legal challenges, but did urge the justices to accept the cases to give the state "finality.'' Gov. Arnold Schwarzenegger has stated publicly that he believes the Supreme Court will again strike down the gay marriage ban.

In the meantime, legal experts are divided over the likely outcome — although most do not believe the court would void the existing same-sex marriages because of precedents that frown on taking away existing rights. The central question in the case is whether a change to the state constitution that removes a legal right for a minority group is so dramatic that it must first be considered by the Legislature before it can be put before the voters.

Gay rights advocates argue that a ballot measure cannot be used to strip away the constitutional rights established in May's Supreme Court ruling. In a technical argument with sweeping ramifications, they contend the gay marriage ban amounted to a revision to the existing state constitution, requiring a two-thirds majority of the Legislature — or a state constitutional convention — to the get the issue on the ballot.

But Proposition 8 supporters insist the measure was a basic amendment to the constitution that could be put on the ballot through a common petition drive. In court briefs, they argue voters have a firm right to amend the state constitution, saying the Supreme Court's May ruling simply trampled on past decisions by voters to outlaw gay marriage. They also point to past voter-backed constitutional amendments upheld in the courts, including California's death penalty law and Proposition 13's overhaul of the property tax system.

Some conservative legal scholars say the Supreme Court has "no lawful authority" to upend the voters on the subject. But a string of prominent law professors have sided with gay rights advocates, including Harvard law Professor Laurence Tribe and Christopher Edley Jr., dean of Boalt Hall School of Law.

"Unlike other cases, this is a case where for the first time people have voted to single out one group of individuals entitled to the highest level of constitutional protection and taken away civil rights,'' said Donna Ryu, a Hastings College of the Law professor. "It eviscerates the equal protection clause.''

Mercury News Staff Writer Mike Swift contributed to this story. Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236