California Supreme Court

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

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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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California Supreme Court

Jerry Brown, Kenneth Starr and California Proposition 8

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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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California Supreme Court

Recalling the California Supreme Court Over Proposition 8

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California Supreme Court Justices, from top left, Kathryn Mickle Werdegar, Carlos R. Moreno, Joyce L. Kennard, Marvin Baxter and from lower left, Ming Chin, Chief Justice Ronald M. George and Carol Corrigan

Power Line makes the obvious observation as to the consequences of the California Supreme Court overruling a vote of the people on California Propsition 8 that restored the traditional definition of marriage (one man and one woman).

The votes by which the people of California passed Proposition 8, restricting the definition of marriage to a union between a man and a woman, had barely been counted when the ACLU filed a lawsuit. That suit, filed directly with the California Supreme Court, claimed that Prop. 8 would change the California Constitution in so fundamental a way — i.e., taking important rights away from a minority group — that it amounts to a constitutional revision. As such, the theory goes, the legislature was required to pass it before submitting the matter to the voters.

This kind of argument seems like meat and drink for California’s liberal Supreme Court. But my friend Craig Harrison tells me that if that court once again tells the voters “to go to hell,” he expects recall petitions to be circulated for the judges in question. This is permitted under the California Constitution if signatures can be obtained from 20% of the number of people who voted in the last election. Given the 2008 turnout, it might make sense to submit the petition following the primaries that will occur next year.

The petition would not just pertain to the merits of Prop 8, but also to the fact that the state’s judges will have thumbed their noses at the popular will. Perhaps those judges will consider this risk when they take up the matter.

Paul and John don’t quite have the timing correct as ANY election would be in June 2010 and there are no primary elections scheduled next year in California.

However, Flap does not think the California Supreme Court will throw out the California voters’ wishes. We received an indication of this the other day by Justice Kennard’s actions.

There is no sense in talking about a recall election of the court unless they go off the deep end again.

But, recalled all they would be in 2010.


OUTED: A California Democrat Assemblywoman Who SUPPORTED Proposition 8 – Wilmer Amina Carter

California Gay Marriage Proponents Organize Boycott Against San Diego Storage Company Over Proposition 8 Donations

Does California Supreme Court Justice Joyce Kennard’s Vote Yesterday a Good Sign for Proposition 8?

Poll: 3 of 5 in California Say Gay Marriages Before Proposition 8 Should Remain Legal?

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California Supreme Court

Does California Supreme Court Justice Joyce Kennard’s Vote Yesterday a Good Sign for Proposition 8?

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California Supreme Court Justices, from top left, Kathryn Mickle Werdegar, Carlos R. Moreno, Joyce L. Kennard, Marvin Baxter and from lower left, Ming Chin, Chief Justice Ronald M. George and Carol Corrigan

In yesterday’s post about the California Supreme Court accepting California’s Proposition 8 that restored the traditional definition of marriage (one man and one woman) to the California Constitution for review, Flap briefly mentioned the fact that Justice Kennard did NOT sign the order.

From the order:

Justice Kennard would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.

Justice Kennard, in fact, voted against reviewing the constitutionality of Proposition 8.


While both sides cheered the court’s decision to take up the cases, Kennard’s lone vote to deny review could spell trouble for opponents of Prop. 8.

Kennard is the court’s longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples’ rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.

“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.

For those seeking to overturn Prop. 8, “I would not think it would be encouraging,” said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.

Flap thinks the court ultimately will support California’s voters and uphold the constitutionality of Proposition 8. Flap predicts a 6-1 vote with Justice Moreno dissenting.

Justice Kennard has sent a message to her fellow Justices yesterday that she plans to uphold Prop. 8.

Or did she?

Stay tuned……

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