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Analysis on California Supreme Court Hearing on Proposition 8
Posted by: Mary Ellen Waller
March 26, 2009

The California Supreme Court heard oral argument earlier this month on the validity of Proposition 8, a measure banning same-sex marriage that California voters approved in November 2008. The televised closely watched session had people nationwide mass text-messaging on Twitter as if calling a sporting event giving moment by moment real-time updates and often colorful impressions on the Supreme Court hearing. The Supreme Court decision will be historic and have implications for decades to come determining the fate of same-sex marriage in the State as well as the validity of an estimated 18,000 same-sex marriages already performed in California. 

In May  2008, California State Supreme Court ruled that California's prior ban on same-sex marriage was unconstitutional because it deprived gay couples of the right to wed. Proposition 8, a statewide ballot initiative, passed in November with about 52 percent of the vote. This made California one of several states to ban same-sex marriage, thus erasing last May's Supreme Court ruling. California had been issuing marriage licenses to same-sex couples since the state Supreme Court ruled on May 15 that the unions were legal and continued to do so until the votes on the initiative were certified. Civil rights groups, same-sex couples, and a number of local governments, including Santa Clara County and the City and County of San Francisco sued to block enforcement of Proposition 8.

The California Supreme Court issued an order to show cause in three cases challenging the constitutionality of Proposition 8. The cases were Strauss et al. v. Horton, Tyler et al .v. State of California et al. and City and County of San Francisco et al. v. Horton. The Court directed the parties to brief and argue the following issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the Separation of Powers doctrine under the California Constitution? and (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? The Supreme Court has received an avalanche of amicus curiae briefs known as "friend of the court" briefs giving arguments on both sides of these issues from various groups who believe that the Court's decision may affect their interests.

After oral argument the court took the issues under submission and has up until June 5, 2009 to decide whether it will uphold Proposition 8, though there is speculation in the legal community that this decision is bound to come sooner rather than later since the lives of an estimated 18,000 same-sex couples who have already married under California law hang in legal limbo. The Wall Street Journal, The Los Angeles Times, and other news media have reported that the California Supreme Court indicated that it will uphold Proposition 8 but will also let the marriages that have already taken place stand. If that projection is correct, it will essentially make for three classes of people in California; those who can marry, those who can't marry, and the limited class of approximately 18,000 same-sex couples who married during a window of time when the California Supreme Court allowed same-sex marriages to take place. Continued ....

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Further Developments Regarding California Proposition 8
Posted by: Mary Ellen Waller
March 03, 2009

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