California Supreme Court to hear challenges to Prop. 8

Legal battle: After voters decided Nov. 4 that same-sex marriage should be banned, the battle has shifted to the California Supreme Court, which voted 6-1 Wednesday to hear arguments on the legality of the issue. (Jason Steinberg/Special to The Examiner)

SAN FRANCISCO — The fight for same-sex marriage is headed back to court, again.

The California Supreme Court agreed Wednesday to hear three lawsuits challenging the legality of recently passed Proposition 8, the voter-approved measure that amends the state constitution to define marriage as between a man and woman.

The court, however, refused to allow same-sex marriages to continue while the cases are being weighed. Same-sex couples will have to wait for a decision — possibly until March — before saying “I do.”

The court’s decision throws same-sex marriage back under a legal spotlight. The state high court ruled in a 4-3 decision in May that a law prohibiting same-sex couples from marrying was unconstitutional because the right to marry was a protection under law, and same-sex marriage was not excluded from that right.

In response to the decision, opponents of same-sex marriage collected signatures and placed Prop. 8 on the Nov. 4 ballot as a constitutional amendment. Prop. 8 passed with 52 percent of the vote.

The question before justices is whether such a fundamental change requires a revision to the constitution, rather than an amendment. Advocates for same-sex marriage claim Prop. 8 denies equal protection to a minority group and argues it was a revision and not an amendment.  A revision to the state constitution requires approval by two-thirds of the state Legislature to be put on the ballot. An amendment requires only a collection of signatures.

The court will also decide whether the estimated 18,000 marriages — 5,000 in San Francisco — conducted in the state before the voters approved Prop. 8  will remain valid.

The Supreme Court decision to take the cases pleased those on both sides of the legal battle as they seek to definitively tip the balance toward the state constitution or the will of the voters. Legal briefs are due in January, and the court has 90 days to make a decision after oral arguments, which could occur as soon as March.

Andrew Pugno, general counsel for the Yes on 8 campaign, said he expects a speedy resolution in favor of California voters.

“We are very happy the court has decided to fast track this case,” Pugno said. “We’re also thankful that the official proponents will not be left out.”

Six separate groups have filed challenges to Prop. 8. San Francisco City Attorney Dennis Herrera is heading one of those challenges with the support of 10 other cities and counties.

“I’m very grateful that the California Supreme Court has agreed to take up these legal challenges, to move with finality and certainty as to what our constitution requires,” Herrera said.

At a news conference Wednesday, Herrera said there is much at stake with the cases, such as avoiding a constitutional crisis.

“We also need to be clear that the cases before the high court today are no simple rematch,” Herrera said. “To be candid, the principles implicated here are of far greater consequence than marriage alone.”

Other groups fighting for same-sex marriage have submitted similar arguments.

In support of Prop. 8, another half-dozen arguments were filed by legal institutes and individuals, seeking to defend the will of the voters. California Attorney General Jerry Brown, whose office must defend the ballot measure it approved earlier this year, also called on the court to hear the case for a “prompt resolution of the legality of Proposition 8.”

bbegin@sfexaminer.com

Next steps

Upcoming key dates in the court battle on the legality of Propostion 8:

• Dec. 19: Deadline for Attorney General Jerry Brown and lawyers for the Yes on 8 campaign to submit arguments on why the ballot initiative should not be nullified.
• Jan. 5: Deadline for lawyers for the plaintiffs, who include same-sex couples who did not wed before the election, to respond.
• March: Oral arguments could begin. The court has 90 days to rule after oral arguments.