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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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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Recalling the California Supreme Court Over Proposition 8

Posted 2 CommentsPosted in California Supreme Court, Gay Marriage
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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.

Previous:

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 Proposition 8 Proponents “Profoundly Gratified” in California Supreme Court Rulings

Posted 17 CommentsPosted in California Supreme Court, Gay Marriage
protect-marriage-logo

Protect Marriage.Com

And, the proponents are confident that Proposition 8 wll be upheld.

The official proponents of Proposition 8 and ProtectMarriage.com – Yes on 8, the campaign committee responsible for its enactment by voters today said it is “profoundly gratified” that the California Supreme Court granted all their requests by agreeing to accept original jurisdiction of three cases challenging the measure’s validity,  granted their request to intervene in the cases as Real Parties in Interest, denied the request of others to delay implementation of Proposition 8, and refused to allow outside groups to directly participate in the litigation.

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 as the briefs are prepared.


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California Supreme Court Agrees to Hear Proposition 8 But Denies Stay in Gay Marriage Ban

Posted 7 CommentsPosted in California Supreme Court, Gay Marriage
Yes on prop 8 400

The California Supreme Court agreed to decide today the legality of California’s Proposition 8 that restored the traditional definition of marriage (one man and one woman) to the California Constitution.

At the urging of both sponsors and opponents of Proposition 8, the justices granted review of lawsuits challenging the Nov. 4 initiative. Approved by 52 percent of the voters, Prop. 8 restored the definition of marriage – a union of a man and a woman – that the court had overturned May 15.

In today’s order, the justices let Prop. 8 remain in effect, denying a stay that would have allowed county clerks to resume issuing marriage licenses to same-sex couples until the case was decided. No hearing has been scheduled.

But, a stay was DENIED, meaning gay marriage in California remains banned.

The order is here. (Pdf)

In other items of interest in the order:

  • The motions to intervene in the cases by Proposition 8 Official Proponents et. al. are GRANTED.
  • Briefs are due on or before December 19, 2008. Replies by January 5, 2009.
  • The issues to be argued and briefed:
  1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to the California Constitution? (see Cal. Const.,art.XVIII, §§ 1-4.)
  2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
  3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
  • Amicus curiae brief application and brief are due on or before January 15, 2009. Reply to amicus curae brief is due January 21, 2009.
  • Justice Moreno joins the order but voted to stay proposition 8.
  • 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.
Gay Marriage

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

Justices supporting the overturn of the original gay marriage ban 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

The original May 2008 decision which California Propsoition 8 overturned by Constitutional amendment  is here.(Pdf)

Stay tuned…..


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