The three key developments:
1. The California Supreme Court will hear the challenges and decide whether to strike down Prop. 8.
2. Only Yes on 8, and no other supporters of the amendment, will be allowed to intervene. (Note, however, that the task of defending Prop. 8 will fall primarily to Attorney General Jerry Brown — who actually opposes it.)
3. The ban will not be stayed pending the challenge. So for the time being, there will be no new gay marriages in California.
Incidentally, the vote was 6-1 to hear the challenge (the lone dissenter was, however, amenable to subsequent litigation regarding the status of existing gay marriages). A different 6-1 mix voted against staying the amendment.
The deadline for briefs is January 5, 2009. The hearing on the challenge will occur in March 2009.
The issues to be briefed and argued in these matters are as follows:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 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?
Stay tuned.
Previously:
–On the Petition to Overturn Proposition 8
1 response so far ↓
Link Ken // Nov 20, 2008 at 2:31 am
Kip, I know you opined before that Romer v. Evans wouldn't be a worthwhile approach. I'm just not certain I agree it wouldn't be worth a try, at least as one of several arguments.
I understand that the litigants attacking the law wouldn't want to rely on the Romer v. Evans doctrine in federal court, because that would eventually lead to a hostile SCOTUS. I also understand why they wouldn't rely on Romer alone, as the discriminatory proposition in that case (barring local governments in Colorado from passing anti-discrimination measures protecting gays) may well be distinguishable from Prop 8 — though I think a colorable comparison to Romer exists.
But why not assert that the California courts should recognize a Romer doctrine under the equal protection clause of California's own constitution? That could achieve the same result without triggering SCOTUS review. This California Supreme Court might well accept a doctrine that the California constitution prevents the populace from passing propositions divesting identified groups of previously recognized rights.