Court’s decision is difficult to predict
By: Brent Begin
Examiner Staff Writer
November 20, 2008
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| Supporters of same-sex marriage cheer in front of San Francisco's City Hall on Saturday, Nov. 15, 2008. 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. (AP) |
SAN FRANCISCO — Six months after the California Supreme Court’s historic 4-3 decison to allow same-sex marriages, the decision of the court to take on the constitutionality of Proposition 8 has opponents and advocates once again looking into the judicial crystal ball.
The justices voted 6-1 Wednesday to review the legal challenges to Prop. 8, which amends the state constitution to define marriage as a union between a man and a woman. Justice Joyce Kennard, who voted in May for the majority decision to allow same-sex marriages, did not sign the order, leading some to wonder if same-sex marriage advocates had lost a crucial vote.
The court on Wednesday also refused in a 6-1 vote to allow same-sex couples to marry while it considers the constitutionality of Prop. 8. The dissenting vote, Justice Carlos Moreno, is sure to vote in favor of same-sex couples, according to constitutional law Professor Ethan Lieb of the UC Hastings College of the Law.
“What we’re told is that Moreno is very likely to strike down Prop. 8, and that Kennard thought the whole challenge was trivial,” Lieb said. “The rest of the votes are up in the air.”
Some legal scholars also said that not allowing the marriages to continue doesn’t mean much for either side.
“It would have meant a lot if it was the other way around,” Lieb added.
Another Hastings professor, Calvin Massey, said the most surprising thing about the court decision Wednesday was that every issue — including whether marriages before the election are legal — will be decided in one case.
“The court is really doing the state a service by taking on these issues at once,” Massey said.
The court’s decisions on same-sex unions
In May, the state Supreme Court determined there is a constitutional right to marry that extends equally to same-sex couples. Proposition 8, a constitutional amendment that defines marriage as a union between a man and woman, was passed Nov. 4. The state Supreme Court will now decide:
- If Prop. 8 is an amendment to the state constitution or a revision to the constitution. An amendment requires signatures to get on the ballot, a revision requires two-thirds approval of the legislature. Prop. 8 was put on the ballot with signatures.
- If Prop. 8 is not unconstitutional, will same-sex marriages that occurred before it passed remain valid?
- If Prop. 8 violates separation of powers because it limits the courts from protecting the rights on a minority group against the will of the majority.
