California Supreme Court Upholds Proposition 8 and OKS Existing California Gay Marriages

Posted Posted in California Supreme Court, Gay Marriage
Gay Marriage

The California Supreme Court

The California Supreme Court this morning upheld California Proposition 8 (which restored the traditional definition of marriage -one man and one woman) which passed at last November’s election.
The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.

Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election.
The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May.

The decision/opinion of the California Supreme Court is here.

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must “find its expression at the ballot box.” (In re Marriage Cases, supra, 43 Cal.4th 757, 884 (conc. & dis. opn. of Corrigan, J.); see also id. at pp. 861, 878 (conc. & dis. opn. of Baxter, J.).)

Just as Flap predicted before oral arguments in March.

So, off to the ballot, California is likely headed. But, whether it will be in 2010, 2012 or later is a matter of conjecture.

There are advanatges for gay marriage activists to push the issue into 2010. But, this is a California Governor election year where all of the Democrat candidates support gay marriage and the Republicans support civil unions/domestic partnerships with equitable rights. Will the Democrats who covet the Governorship, now held by Republican Arnold Schwarzenegger really want to run on the gay marriage issue?

Doubtful. And, the e-mail press releases from California Governor candidates are already flying into Flap’s e-mail box.

Yet, in 2012, President Barack Obama will be running for re-election which will again bring unprecedented numbers of African American voters to the polls. These voters supported California Proposition 8 in the last election by significant numbers.

The gay marriage proponents may then seek reddress in the courts since some homosexual couples are considered married and some who did not meet the deadline are not. But, this will be a slow, tedious process in the federal courts where a favorable outcome is not guaranteed for gay marriage.

Stay tuned……..

Previous:

Proposition 8 Aftermath: California Gay Marriage Backers Have Much to Do Before Returning to California Ballot

Poll Watch: Gay Marriage Evenly Splits Californians – Tough Race in 2010

California Supreme Court Appears to Be Ready to Uphold Constitutionality of Proposition 8

California Supreme Court Hears Oral Arguments on Proposition 8 Re: Gay Marriage Today

California Supreme Court to Hear Oral Arguments on Proposition 8 Case March 5


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California Proposition 8 Ruling by California Supreme Court Coming Next Tuesday

Posted 2 CommentsPosted in California Supreme Court, Gay Marriage
prop-8-ruling


The California Supreme Court will issue its ruling next Tuesday.

The California Supreme Court has announced that it will rule Tuesday on three cases challenging the constitutionality of Proposition 8, the measure voters passed to ban gay marriage

The opinion will be released at 10 a.m. Tuesday, the High Court announced today.

Proposition 8 passed last Nov. 4 with about 52 percent of the vote. It changes California’s constitution with a simple declaration that only a marriage between a man and a woman is legal and valid in the state.

The court has been very quiet and so have court pundits. I would expect that had the Justices decided to overturn the voter approved Proposition 8 and thus legalize gay marriage in California that there would have been some timely leaks.

It has been anticipated for months since the oral arguments that the California Supreme Court will declare Proposition 8 (which restored the tradtional definition of marriage (one man and one woman) to the California Constitution) constitutional.

Flap’s Opinion:

Flap can count as well.  Three California Supreme Court Justices that opposed gay marriage plus Justice Kennard (who refused to sign the order and voted to deny the petitions) equals four votes upholding the Proposition and the traditional definition of marriage.

Flap bets the final vote will be 6-1 with Moreno dissenting to uphold Proposition 8 simply because a MORON would have to rule this is a revision of the Constitution and not an amendment.

Stay tuned…..

Previous:

California Supreme Court Decision on Proposition 8 Gay Marriage Due Out This Week?

California Supreme Court Appears to Be Ready to Uphold Constitutionality of Proposition 8


California Supreme Court Hears Oral Arguments on Proposition 8 Re: Gay Marriage Today


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California Supreme Court Appears to Be Ready to Uphold Constitutionality of Proposition 8

Posted 7 CommentsPosted in California Supreme Court, Carol Corrigan, Gay Marriage, Joyce Kennard, Kenneth Starr, Marvin Baxter, Ronald George
california supremes

Shannon Minter, standing, speaks to the California Supreme Court in San Francisco, Thursday, March 5, 2009 on the constitutionality of the state’s voter-approved Proposition 8 that bans gay unions. The court will decide whether to uphold the same-sex marriage ban and whether same-sex couple marriages will remain valid

Flap watched the oral arguments before the California Supreme Court on the challenge to California Proposition 8 which was approved by California voters last November. Proposition 8 restored the traditional definition of marriage (one man and one woman) in the California Constitution.

It is my sense (and others too) that the California Supremes will acquiese to the vote of the people on making traditional marriage (one man and one woman) the law of California since the election. However, the validity of prevous gay marriages (allowed by last year’s California Supreme Court ruling on Proposition 22) may be upheld in some way.

The California Supreme Court appeared ready today to vote to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed ready to decide unanimously to recognize existing same-sex marriages.

During a three-hour televised hearing in San Francisco, only two of the court’s seven justices indicated a possible readiness to overturn the initiative. Chief Justice Ronald M. George noted that the court was following a different Constitution when it approved gay marriage last May.

“Today we have a different state Constitution,” he said.

Justice Joyce L. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to Proposition 8 but said she would hear arguments over the validity of existing same-sex marriages.

Kennard said during the hearing that “Prop. 8 did not take away the whole bundle of rights that this court articulated in the marriage case.”

She said that “a very important holding” – giving sexual orientation the same constitutional status as race or gender – was not changed.
“Is it still your view that the sky has fallen and gays and lesbians are left with nothing?” she asked gay rights lawyers?

Kennard told them they also had the right to return to voters with their own initiative.

So, how will the vote break down in the court?

Gay Marriage

Justices supporting the overturn of the original gay marriage ban (May 2008) are:

  • Chief Justice Ronald George
  • Justice Kathryn Mickle Werdegar
  • Justice Joyce L. Kennard
  • Justice Carlos R. Moreno

Chief Justice George and Justice Moreno stand for reconfirmation to another twelve year term of office in November 2010.

Justices dissenting from the original decision to end the gay marriage ban are:

  • Justice Marvin Baxter
  • Justice Carol Corrigan
  • Justice Ming Chin

Flap will stay with his previous opinion:

Flap can count as well.  Three California Supreme Court Justices that opposed gay marriage plus Justice Kennard (who refused to sign the order and voted to deny the petitions) equals four votes upholding the Proposition and the traditional definition of marriage.

Flap bets the final vote will be 6-1 with Moreno dissenting to uphold Proposition 8 simply because a MORON would have to rule this is a revision of the Constitution and not an amendment.

The decision by the California supreme court is due within 90 days. Want to bet the Court releases its opinion on Friday prior to the Memorial Day weekend?


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California Supreme Court Hears Oral Arguments on Proposition 8 Re: Gay Marriage Today

Posted 4 CommentsPosted in California Supreme Court, Gay Marriage, Gay Politics
prop 8 rally

Wesley Gann (R) and his partner Jerry Johnson take part in a rally ahead of the California Supreme Court hearing on Proposition 8 in Los Angeles March 4, 2009. Proposition 8, passed by California voters in November, amends the state constitution to provide that only marriage between a man and a woman is recognized in California

Yes, the California Supreme Court will hear oral arguments for and against California Proposition 8 that was passed by California voters last November. Proposition 8 restored the traditional definition of marriage in the California Constitution – one man and one woman.

All of the legal filings before the California Supreme Court are here.

The proceedings before the Court will be covered live by Flap on Twitter beginning a little before 9 AM Pacific time. Follow Flap on Twitter here or read the right sidebar ————->


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California Supreme Court to Hear Oral Arguments on Proposition 8 Case March 5

Posted 1 CommentPosted in California Supreme Court, Gay Marriage
Yes on prop 8 400

The battle over gay marriage in California and California Proposition 8 which was passed by California voters last November is coming to an end in the California Supreme Court.

The state Supreme Court will hear arguments March 5 on the validity of California’s ban on same-sex marriage, which voters approved in November after an emotionally charged and expensive campaign.

The court said Tuesday that it would hold a three-hour hearing on Proposition 8, from 9 a.m. to noon, at its chambers in San Francisco . The proceedings will also be televised statewide on the California Channel, the court said. A ruling is due within 90 days of the hearing.

Prop. 8 amended the state Constitution to declare that marriage only between a man and a woman is valid or recognized in California. It overturned the court’s May 15 ruling throwing out state laws that banned same-sex marriage.

Along with arguments over the constitutionality of Prop. 8, the court will hear views on whether 18,000 same-sex marriages performed in California before the November election should remain legally recognized if the ballot measure is upheld.

A ruling, therefore, on the constituionality of California Proposition 8 that restored the traditional definition of marriage (one man and one woman) will be made by June 5, 2009.

Flap predicts that court will uphold the decision of California voters and hold Proposition 8 constitutional.

Then, gay marriage proponents will have to decide whether they want to circulate an initiative for the June 2010 or November 2010 ballot to overturn Proposition 8.

All of the legal filings before the California Supreme Court are here.

Stay tuned……


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Jerry Brown, Kenneth Starr and California Proposition 8

Posted 9 CommentsPosted in California Supreme Court, Gay Marriage, Jerry Brown, Kenneth Starr
Kenneth Starr
Kenneth W. Starr, the former U.S. Solicitor General and Pepperdine School of Law Dean who led the inquiry into President Bill Clinton’s affair with Monica L. Lewinsky, will argue the case in favor of upholding a ban on gay marriage before the California Supreme Court

So, who would you rather have supporting your cause before the California Supreme Court, Dean Kenneth Starr or California Attorney General Jerry Brown? -especially when the cause is the legality of gay marriage.

Brown who had not practiced law for over a decade before he won an election as California Attorney General has postulated a weird legal theory (in his brief before the court) as to why the California Supreme Court should overturn the vote of the California people restoring the traditional definition of marriage (one man one one woman).

Jerry Brown’s brief is here.

Nonetheless, the attorney general’s brief surprised some legal scholars.

Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said Brown’s argument “turns constitutional law on its head.” Uelmen said he was unaware of any case law that supported Brown’s theory.

He added that he expected the state Supreme Court to reject the argument. “I think it is much too radical for this court,” he said.

Goodwin Liu, associate dean and professor of law at UC Berkeley’s Boalt Hall School of Law, said it was “extraordinary for the chief law enforcement officer of the state to decline to enforce a law — even on the grounds that it is unconstitutional.”

“The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees,” Liu said.

“Whether or not it will carry the day,” he added, “I have no idea.”

Under Brown’s legal theory, Flap doubts the California Constitution could ever be amended.

The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote.

The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”

Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.

Just call anyting an “inalienable” right and you can withdraw the people’s right to change the Constitution.

How stupid is this?

If the California Supreme Court rules in favor of this preposterous theory and overturns California Proposition 8 all of the members of the court will either be recalled or thrown ot of office at the next confirmation election.

The Yes on 8 campaign filed a brief telling the court that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions.

“Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions,” reads the brief co-written by Kenneth Starr, dean of Pepperdine University’s law school and the former independent counsel who investigated President Bill Clinton.

Stay tuned as reply briefs are filed with the court by January 5th.

Exit answer: Kenneth Starr


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