Breaking: Court will hear challenges to Prop 8*

supedocOne hears from Kate Kendall, et al. (soon the rest of the news media) that the California Supreme Court will hear challenges to Proposition 8, and has set an expedited briefing schedule.  

I know close to diddly squat about things legal, but the dates at the bottom of the court order (available here) note that a “brief” may be filed by intervenors no later than December 19, and a “reply” by petitioners (presumably to that brief) no later than January 5 of next year.  Amicus curiae briefs may be filed on or before January 15.  

* [Maura Dolan’s LA Times piece on this notes the hearing will be scheduled for March 2009. All of which serves to confirm the diddly squat remark above.]

If the court acts as swiftly as I want it to act (you know, as opposed to however damn fast or slow it needs to to think this through thoroughly), we might have a decision by our new president’s inauguration.  Lord love me if it’s good news than I guarantee I will be wearing Depends undergarments on his inaugural, since I will for sure be so elated I will pee.  Yes, I said it here.

Now if it’s not good news, whatever. I may still need the undergarments.  I’m just not guaranteeing it.

Here’s what NCLR sent out to its mailing list (rapidly followed by EQCA):


Today the California Supreme Court granted review in the legal challenges to Proposition 8, which passed by a narrow margin of 52 percent on November 4. In an order issued today, the Court agreed to hear the case and set an expedited briefing schedule. The Court also denied an immediate stay.     

On November 5, 2008, the National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal filed a lawsuit challenging the validity of Proposition 8 in the California Supreme Court on behalf of six couples and Equality California. The City of San Francisco, joined by the City of Los Angeles, the County ofLos Angeles, and Santa Clara County, filed a similar challenge, as did a private attorney in Los Angeles.

The lawsuits allege that, on its face, Proposition 8 is an improper revision rather than an amendment of the California Constitution because, in its very title, which was “Eliminates the right to marry for same-sex couples,” the initiative eliminated an existing right only for a targeted minority. If permitted to stand, Proposition 8 would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only for a particular group. Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.   According to the California Constitution, such a serious revision of our state Constitution cannot be enacted through a simple majority vote, but must first be approved by two-thirds of the Legislature.   


Since the three lawsuits submitted on November 5, three other lawsuits challenging Proposition 8 have been filed. In a petition filed on November 14, 2008, leading African American, Latino, and Asian American groups argued that Proposition 8 threatens the equal protection rights of all Californians.

On November 17, 2008, the California Council of Churches and other religious leaders and faith organizations representing millions of members statewide, also filed a petition asserting that Proposition 8 poses a severe threat to the guarantee of equal protection for all, and was not enacted through the constitutionally required process for such a dramatic change to the California Constitution. On the same day,prominent California women’s rights organizations filed a petition asking the Court to invalidate Proposition 8 because of its potentially disastrous implications for women and other groups that face discrimination.

In May of 2008, the California Supreme Court held that barring same-sex couples from marriage violates the equal protection clause of the California Constitution and violates the fundamental right to marry. Proposition 8 would completely eliminate the right to marry only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group.    


Over the past 100 years, the California Supreme Court has heard nine cases challenging either legislative enactments or initiatives as invalid revisions of the California Constitution. In three of those cases, the Court invalidated those measures. 

16 thoughts on “Breaking: Court will hear challenges to Prop 8*”

  1. Thanks annz! You commented right when I was taking my second pass at the hasty note.

    Now we all go harass anyone we know who is a lawyer, and promise never to tease them with lawyer jokes ever again if only they will explain this whole bee’s wax to us.

    I am going to be calm and not stock up on the Depends just yet. Three out of nine (the number of such challenges actually sticking, out of the number posed) ain’t the best odds. And others have written (hither and yon) that the amendment vs. revision argument is a technical long shot. Though I’ve also read that the other arguments are stronger — i.e., that the constitution is thrown into disagreement with itself as a result of this proposition, insofar as it requires unequal treatment of a group which the court did find to be a “suspect class” on the order of women and racial minorities, and therefore warranting the “equal protection” of the Equal Protections Clause.

    What do I know. Next to nada. Not like that keeps me from running off at the fingertips.

  2. PS. The California Council of Churches, along with the General Synod of the United Church of Christ, two Episcopal Bishops (of CA and of Los Angeles), the Progressive Jewish Alliance, the Unitarian Universalist Ass’n of Congregations and the Unitarian Universalist Legislative Ministry of CA, and the Northern and Southern CA and the Nevada Conferences of the United Church of Christ, have filed a petition to the CA Supreme Court asking it to invalidate Proposition 8 (PDF of the petition here).

    Their argument?

    “Proposition 8 poses a grave threat to religious freedom,” said Rev. Rick Schlosser, Executive Director of the California Council of Churches. “If the Court permits gay men and lesbians to be deprived of equal protection by a simple majority vote, religious minorities could be denied equal protection as well—a terrible irony in a nation founded by people who emigrated to escape religious persecution. If the Court permits Proposition 8 to take effect, religious discrimination similarly could be written into California’s Constitution.”

    The CA Council of Churches’ Marriage Equality page is a wonderful resource for people of faith struggling with the issue. I’m tempted to clip whole chunks of it here, but I’m sure it’s easier to click the link to the page.

    Here’s a direct PDF download of their study guide: “Living Lovingly: Talking About Marriage Equality From a Faith Perspective.”

  3. I’m trying to coin a new word: squeed. It is the past tense of when you squeal and pee a little at the same time. I had originally thought it applied only to the toddler set, or possibly the elderly, but for a brief moment as I read this, I thought it had the chance of applying to you as well. Oh well. March 2009 it is. Damn those courts and their schedules.

  4. Trying to think of a sentence Elmer Fudd might utter, in which he uses the word “squeed,” but was really referring to “a long speech or piece of writing, typically one regarded as tedious.” Which the final ruling might indeed be. I just hope I am inspired to squeal and pee at the same time while reading it.

  5. Hi, my name is Caitlin, and I’m a lawyer. (Hi, Caitlin.)

    A hearing means the lawyers for both sides will go argue before the judge. By March they’ll have fully briefed the issue, meaning that the pro gay marriage folks will have submitted an opening brief, to which the anti folks will reply, to which the pro folks will issue a concluding reply. The judge will read those briefs, and, barring the need for supplemental briefing on any issue (which is basically when the judge would say, tell me more about the law on a particular issue) which would delay the hearing, oral argument will take place in March. So basically there is an opportunity for both sides to present written and oral argument, which in our legal system allows for arguments to be developed fully, most of the time.

    What I don’t understand is why the lawyers for the No on 8 campaign didn’t take this to federal court right away, for a challenge under the U.S. Constitution. I have confidence that strategically it’s the right course of action, but I haven’t heard an explanation yet as to why that is. See, e.g., To me it seems like the equal protection clause of the 14th amendment would be the strongest and most direct mechanism by which to challenge this state constitutional amendment, but I’ve only been practicing law for a year and a half, so I guess it’s good they didn’t hire me as their lawyer! 🙂

  6. Hi, Caitlin!

    [Date night (woot!) slowed your comment’s seeing the light of day.]

    I am definitely not a lawyer, nor do I play one on TV, nor on the internets. All’s I know is that what I’ve heard has been that the current make-up of the federal Supreme Court is such that any arguments taken directly to them right now are discouraged. I recall reading some statement to that effect (though where, now, I don’t know, though, you know: date night might diminish the mental faculties). Though I do know, as of course you do, that Prop 187 was struck down based on that very (abrogation of the Equal Protections Clause) argument.

    One can only guess that the anti-8 legal folks are working with the finest legal insights available?

    I do also know (again, from a non-attorney POV) that several of the suits brought also address the inherent contradictoriness of the constitution, vis-a-vis the equal protection clause. Kind of a more Prop 187-ish argument. Though the thing the press keeps picking up on is the revision vs. the amendment argument.


  7. I’m writing from a first year law student point of view, so I qualify as a legal powerhouse much less than Caitlin, but responding to her point about the Federal Court system, I haven’t heard too much to indicate this would be a great course of action.

    The environment seems much friendlier in state courts. At the federal level, we don’t have nearly the recognition and protection that we have at the state level. The executive and legislative branches of the federal government have made no bones about giving us unequal protection under federal law, and have been unchallenged by the judiciary (although I don’t know the case law surrounding any attempts to have it challenged, if there is any). Given the current national climate of letting states decide for themselves on this issue, I would be surprised if the federal courts would be willing to take it up.

    Prop 187 was a bit easier for the federal courts to wrangle with, because it dealt with the denial of rights that were generally provided in other states–the decision there didn’t cause havoc throughout the country–and similar issues had been touched on in previous Supreme Court decision. As opposed to here, where a decision in our favor (that denying same sex marriage violates the 14th Amendment) would overturn law in 48 states. I think that is a leap the federal court would be very loathe to make. Making the issue even touchier is that this is not a question just of state statute, but of state constitution.

    Generally, although it doesn’t make for a good story and it makes progress veerrry verrrry slow, the best way to get decisions that go your way is to ask for the smallest stretch possible from the courts. Despite all the talk about activist judges, many judges don’t see their role as changing or creating law. It’s a safer bet to ask the state court to find that, under state law, this change is fundamental to the state constitution and should have gone through a different administrative process; than it is to ask the federal court to issue a sweeping declaration that denial of same-sex marriage is a violation of the 14th Amendment. Sexy? No. Infuriatingly slow-paced and completely unsatisfactory? You betcha. But going down in flames on a 14th Amendment challenge would set us back so much farther than the passage of Prop 8, it wouldn’t be funny.

    Plus, yes, there is also the fact that if it got to the current Supreme Court, I don’t think I’d want our fate in the hands of the current crew up there. (That being the judicial crew, not our community’s legal crew, lest there be any misunderstanding.)

    With that, I really need to go do classwork and try not to fail out of school on account of Prop 8.

    What I REALLY want to know (I know, this isn’t classwork) is what the backers’ responses are to the argument that a provision counter to the equal protection aspect of the state constitution is a significant change (and thus should have gone through the revision process). I know I’m biased and am probably tunnel visioned, but I haven’t the faintest idea what the counter is to that! The only thing I can think is that they’ll try to argue that Prop 8 does not do that, but in light of the court’s previous ruling I don’t see how that argument would have a snowball’s chance in Hades. So, I’ll just have to wait for December 19 to read the responses. (Which is coincidentally also the last day of finals, so I’ll be reading them with a lot of beer.)

  8. Brava, Ruffian, brava!

    This is better than a Perry Mason marathon!

    As to the last matter — whatthe heck could be the backers’ response/counter-argument — good question. Your take makes perfect sense to me (i.e., a provision counter to the equal protection clause, something so fundamental, would be of necessity significant, & therefore revisionary).

    But I’ve read a lot of nit-picky stuff about what qualifies as “revision” vs. “amendment,” a very specific distinction in the eyes of CA law. (The Volokh Conspiracy has lengthy, frequently informative, if often snarky discourse in the comments stream on one of its related posts.) Some stuff I’ve read has suggested that the mere 14 words of Prop 8 make it not a substantial change to the constitution, and that real, bona fide revisions actually simply alter more square footage of the document, or change how governance happens. As you probably know, as a law student, (and I hope I’m getting this right) one of the nine propositions the CA Supreme Court reviewed was the death penalty [People v. Frierson, 25 Cal. 3d 142 (1979)]. And it found that even something so fundamental as this (argument was that it inflicted cruel and unusual punishment) constituted a mere amendment.

    This piece by Calvin Massey, “California Prop 8 Aftermath: Strauss v. Horton, the State Court Challenge,” at The Faculty Lounge was pretty informative, at least as a synopsis of previous relevant rulings. Especially regarding the death penalty issue, the one that got Rose Bird et al. off the court.

    The soon-to-be notorious (more oft-repeated than “snakes on a plane”) “alligator” analogy is at the end of the piece. In an earlier LA Times piece “Supreme Court must walk fine line,” Dolan relayed a quip from former Supreme Court Justice Otto Kaus, who served on the court immediately following Chief Justice Rose Bird’s ouster (along with two other justices).

    Kaus later said that, as hard as he tried to decide cases impartially, he was never sure whether the threat of a recall election — “the crocodile in the bathtub” — was influencing his votes.

    “It was like finding a crocodile in your bathtub when you go to shave in the morning,” Kaus said. “You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”

  9. True, all of that. Of course, it makes much political sense to keep this out of the hands of the feds (and any legal team that includes Kate Kendall has my full trust [and my full crush]). But on a visceral level it’s just SO FRUSTRATING that we have to tiptoe around because the cultural/ judicial climate makes a trip to federal court risky. That’s why we have the rule of law in the first place! But, what can you do.

    And I agree, it will be fascinating to read the other side’s arguments. I forget where I read it (maybe one of the links that you posted, LD) but some commentator compared this to the Prop 13 issue, where the CA Supremes held that even though it did effect a major shift in CA civil society, it didn’t constitute a significant change/ reordering of gov’t such that it shouldn’t have been up for a vote by the people.

    Here we go!!!

  10. Yeah. Prop 13 was my youthful introduction to California state mock-populist politics. “Mock,” insofar as that proposition SCREWED the people BIG TIME. The PBS documentary “First to Worst” tells the sad tale of woe about the consequences to public education in the state.

    If that wasn’t far-reaching I don’t know what could be.

    And on the Kate Kendall crush: politically speaking, I’d corroborate. She is a major hero, under phenomenal pressure, acting with enormous grace. At Pride this year (in SF) she was in the “Family Garden,” the kiddie playground commandeered by Our Family Coalition, COLAGE, and the LGBT Center. I went up to her and just gushed and thanked her three or four times, and asked could I take a fan pic with her. She was so kind. Not any kind of diva. Her young son (biracial, by the way; her partner’s black, for what that biographical detail’s worth) took this picture:

    IMG_5899 copy

    I went back and told my comrades, “That was a young Thurgood Marshall I just took my picture with.” Shannon Minter would have been a good gushing fan pic, too, but he wasn’t at the kiddie playground.

  11. That is an *awesome* picture. Lucky you!!
    She came to speak at Berkeley when I was a law student and I remember being so impressed by her drive and earnestness. Her purpose is clear; she is so powerfully committed to doing her work in this world. Glad she’s on our team!

  12. My 2 cents is that the strength of the legal arguments for or against invalidating Prop 8 will only go so far w/ the California Supremes. I think some of them will be very unlikely to invalidate a proposition that was approved by 52% of the voters, in fear of a recall campaign. All it takes is one judge who voted for marriage equality to vote the other way and we lose, and I’m sure none of them have forgotten what happened to Rose Bird. Politics, as usual, will trump reason, logic, justice and fairness.

    But I’m a cynic, so feel free to ignore me. I’m the one who said, a year ago, that the U.S. was too racist to vote for a black man, and I was gloriously, delightfully, incredibly, totally wrong.

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