The Supreme Court of California has waded into the same-sex marriage dispute yet again. It said Wednesday that it would rule on the legality of a recent ballot voting down such marriages.
It was six months ago that the court had held the state ban on same-sex marriage unconstitutional. The opponents hit back with Proposition 8 that defined marriage only a union of a man and a woman, and the ballot won a 52 per cent approval.
It was the turn of the supporters of same-sex marriage to maneuver their way out by appealing to the court to overturn the new proposition.
The court agreed Wednesday to review two arguments by opponents of Prop. 8: that the measure exceeds the legal scope of a ballot initiative by allowing a majority to restrict a minority group's rights, and that it violates the constitutional separation of powers by limiting judicial authority.
The justices also asked for arguments on whether Prop. 8, if constitutional, would nullify 18,000 same-sex weddings performed between when the court's marriage ruling took effect in mid-June and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.
The justices asked for written arguments to be submitted through Jan. 21. The court could hold a hearing as early as March, and a ruling would be due 90 days later.
Gay right crusaders are still uneasy, despite the 6-1 readiness to reconsider the ruling. Justice Carlos Moreno who had voted with the majority in the 4-3 decision in May to legalize same sex marriage has now chosen to defect. He was the sole dissenter.
More important is the attitude of Justice Joyce Kennard who was among the four to support the May 15 ruling. 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, San Francisco Chronicle reported.
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.
All parties were pleased, though, at the prospect of a quick decision. If the justices had dismissed the suits, the cases could have been refiled in a county Superior Court and would have reached the high court only after lengthy appeals.
"We could have been looking, easily, at two or three years of litigating this issue," said Shannon Minter, legal director of the National Center for Lesbian Rights and a lawyer for same-sex couples in one of the suits. "It's a great relief that the court recognizes the importance of resolving this quickly."
Similar reactions came from others on opposing sides in the case.
"This is a great day for the rule of law and for the voters of California," said Andrew Pugno, attorney for Protect Marriage, Prop. 8's sponsoring group, which won permission from the court Wednesday to join the case and present arguments at the hearing. He said he was confident the measure would be upheld and was particularly pleased that the court allowed it to remain in effect while the lawsuits are argued.
San Francisco City Attorney Dennis Herrera, whose suit on behalf of the city has been joined or endorsed by 11 other cities and counties, said he was grateful the court accepted the cases.
"This goes far beyond same-sex marriage," Herrera said. "It's about equal protection of the law for all Californians."
The lawsuits that the court agreed to review were filed by two groups of same-sex couples, a gay-rights organization, and San Francisco and other local governments. Civil rights, religious and feminist organizations have since filed separate suits challenging Prop. 8 that the justices may add to their docket.
All the suits argue that Prop. 8, drafted as a state constitutional amendment, makes such drastic changes that it amounts to a revision of the Constitution.
They argue that it is a revision because it deprives a historically persecuted minority of fundamental rights and leaves courts powerless to intervene.
A ruling upholding the measure would leave any minority group vulnerable to repeal of its rights by majority vote, the lawsuits argue.
But supporters of Prop. 8 say it is merely a constitutional amendment restoring the traditional definition of marriage and leaves the structure of state government unaffected. They contend that a ruling overturning the measure would strike a blow to the people's power to change their Constitution by initiative.