California Supreme Court

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

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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

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

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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

Jerry Brown, Kenneth Starr and California Proposition 8

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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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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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