California Supreme Court To Hear Oral Arguments to Invalidate Proposition 8

Today in San Francisco, the California Supreme Court will hear oral arguments from the National Center for Lesbian Rights (NCLR), ACLU, and Lambada legal challenging the November 5 passage of Proposition 8 which sought to overturn the Supreme Court ruling from last year granting rights to same sex partners.

On Vanguard Radio last night, the Vanguard spoke to Elizabeth Gill Staff Attorney from the ACLU in San Francisco and Natalie Wormeli from the Yolo County ACLU. They informed the Vanguard that the central argument that will be made comes down to the fact that the California Constitution does not permit the fundamental constitutional rights of a minority to be stripped away by a simple majority vote.

Ms. Gill said:

“The Court has a solemn responsibility to enforce our state constitution and to protect the rights of all people, regardless of popular opinion. This case isn’t just about marriage, and it’s certainly not just about gay and lesbian couples. If the Court strikes down Proposition 8, it will be protecting the civil rights of all Californians.”

According to NCLR:

“The California Constitution establishes two ways that it can be altered. A substantial change to the principles or basic structure of the constitution, called a “revision,” requires the involvement of the legislature and a more deliberative process. A less substantial change, called an “amendment,” can be enacted by a simple majority vote of the people.

The California Supreme Court should strike down Proposition 8 because it is, in fact, a revision. The principle of equal protection, which prevents the majority from oppressing minority groups, is central to our constitution and our democratic system of government. Proposition 8 would limit that fundamental principle of equality for LGBT Californians and undermine the very purpose of equal protection for everybody.”

Ms. Gill informed the Vanguard last night, that because of the constitutional ramifications that go well beyond the issue of Marriage Equality a number of other civil rights groups have joined in the lawsuit or filed amicus briefs including the Asian Pacific American Legal Center, California State Conference of the NAACP, Equal Justice Society, MALDEF, and NAACP Legal Defense Fund, Inc.; prominent women’s groups; and a coalition of religious groups led by the California Council of Churches, the Anti-Defamation League, among others. According to NCLR, “The Court deferred consideration of the petitions submitted by the civil rights groups, women’s groups, and religious groups, and invited those groups to submit amicus briefs instead.”

According to Shannon Minter, Legal Director of the NCLR:

“Proposition 8 jeopardizes not just the right of same-sex couples to marry, but the rights of all Californians to be treated as free and equal citizens of our state. Our Constitution is based on the principle that majorities must respect minority rights. But if a majority can change the Constitution to take away a fundamental right from one historically disadvantaged minority group, then it can selectively strip fundamental rights from any group. Our system of government will have changed from one that respects minority rights to one in which the power of the majority is all but unlimited.

Equal protection for all citizens is the hallmark of American democracy. If upheld, Prop. 8 would undermine that central, defining guarantee and the unprecedented freedom that it has enabled us to enjoy. That is what is at stake in this case.”

Karin Wang, from the Asian Pacific American Legal Center sees a threat against not just same sex couples, but against all Californians.

“The real threat of Prop. 8 is not just against lesbian, gay, bisexual, and transgender (LGBT) Californians, it is against all Californians. A core purpose of the California Constitution is to ensure that the law treats all people equally, including minority groups. If upheld, Prop. 8 will set a dangerous precedent, where a simple majority vote is able to strip away the fundamental rights of a protected minority group. As an Asian American and a civil rights lawyer, this possibility frightens me.”

Geoff Kors, Executive Director of Equality California:

“Our state Constitution was created to ensure equal treatment under the law for every Californian. Prop 8 changes that fact by taking away a fundamental freedom from one particular group and mandating government discrimination against a minority. We hope the Court upholds the Constitution’s promise of equality.”

State Attorney General Jerry Brown has taken the somewhat unusual step of opposing Proposition 8.

“As California’s Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons — because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.”

In an op-ed yesterday he asks:

“The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?”

The Court will hear oral arguments today. They will then have 90 days under California to issue a ruling. That means that by the first week in June we will know the fate of this law. In the meantime, 18,000 Gay and Lesbian couples who were legally wed prior to November 5, 2008 will be waiting with baited breath.

—David M. Greenwald reporting.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. anonymous

    If the CA Supreme Court overturns Prop 8, this decision will be appealed to the US Supreme Court where it will likely be voided. There are 4 sure votes to overturn such a CA ruling and two others who are likely to concur with the opinion of the four. The CA Supreme Court, in the first go-round,d refused to consider the argument of the prop 8 opponents that a constitutional change via a 2/3 legislative route is necessary. Finally, the vote was 3-2 and there will likely be a recall initiative(remember Chief Justice Bird) if the Supreme Court now reverses their initial position concerning the validity of offering prop 8 to the voters as well as TWO voter decisions on this issue. Supreme Courts(both State and Federal)must deal with the “political”(generic definition) dimension of their decisions when they make new law. We’ll see how this weighs in for at least one of the three who initially supported changing society’s definition of the term marriage.

  2. Are We a Democracy?

    This is the only playbook for progressives: ignore the will of the majority and use the courts to force feed unwanted social change. I think we call this a tyranny of the minority.

    There is nothing practical about the argument from the anti-Prop 8 crowd – civil unions can provide all the equal rights and protections under the same legal system that progressive routinely try to exploit. The interest of gays and their supporters is purely an emotional one. However, those opposed to legalizing gay marriage have many practical concerns. For example, Europe began to experience a precipitous decline in marriage and birthrate following each country’s legalization of gay marriage. Also, there is the question of early-childhood development and the impact to children being raised by same-sex parents. While nobody can argue that poor parenting and broken households are bad for kids despite the gender of the parents, the meaningful comparison is with traditional marriages where children are raised by a mother and father? How do two married women raise a child to a functioning adult male? How do two married men raise a functioning adult female? The political template for gay marriage proponents to deflect this question by talking about broken families and unwanted children; however, there is no statistical proof that these numbers would be any different for gay marriage households.

    There are many other more subtle and longer-term concerns related to a society that elevates the social status and importance of gay marriage equal to man-wife marriage. For example, since gay couples cannot reproduce, they will rely on adoption and artificial insemination. The first increases the competition for scarce adoptable infants that would otherwise go to man-wife married couples. The second starts a trend increasing the number of people lacking connections with one or more of their biological parents. These things can happen without legalized gay marriage, but do we benefit as a society by encouraging it by equalization?

    Most people in this state support gay civil unions and that proves that “homophobia” is not their problem. The problem is the aggressive push for a small minority to achieve some symbolic “progress” that causes the majority to regress.

    The majority has spoken loud and clear TWICE on this subject. Gays should get comfortable with civil unions.

  3. Anon

    CA is so out of step with the rest of the nation on this one. I fully expect the CA Supreme Court to overturn Prop 8, bc they are so left of center. This will trap gays and lesbians in this state, bc almost all other states will not honor “gay marriage”, and never will.

    Furthermore, gays should be fighting for equal rights in a domestic partnership, if equal rights is what this is truly all about. But it isn’t. This is about legitimizing a particular lifestyle. If the stamp of approval is put on “gay marriage”, then polygamy is next (which argument, by the way, has already been tried, so my comment is not “fearmongering”).

    The more appropriate neutral ground here is to insist on equal rights for domestic partnerships, which could include friends living together. It would encompass protecting equal rights for gays, but other domestic partnerships as well. Meanwhile, the “sanctity of marriage” would be kept intact for those who believe marriage should only be between a man and a woman. Equal rights are preserved, but no one is offended (except gays, who insist the rest of us must except THEIR def’n of marriage).

    The message that is being sent here is that if a minority is vocal enough, and can get the backing of certain left leaning organizations, then minorities can override majority rule. Those of you advocating for gay marriage should be careful what you wish for. The next time the court legislates from the bench, the ruling they hand down may not be one you agree with. Do we really want activist courts legislating from the bench? I think not.

    Another problem that is going to arise is a backlash against gays if the court agrees to gay marriage. You watch. I hope I am wrong on this one.

    I also know that Walt Disney would be rolling over in his grave at “Gay Days” in Disneyland, where many gays perform sex acts right out in the open. I know it has been said on this blog that no such thing goes on. Well wake up and smell the coffee. There is verbage on the Disney site, about Gay Days, that talks about places to go to get it on, or words to that effect. Film footage has been taken of this sexual orgy every year and shown on the news.

    I don’t believe for one minute that the randyness of Gay Days at Disneyland represents most gays. But the tolerance that is shown these days towards this sort of thing is what causes many folks (the majority) to cringe when it comes to “gay marriage”. Think about it. The feeling many of us have is that society is getting too permissive in what it condones sexually. We don’t want our bedrock traditions messed with.

    I know, I know, I will now be accused of being a “homophobe”. As it turns out, many gays feel the way I do. Calling names does not address the arguments; calling names is what one does when one cannot win the argument w logic. Funny thing is, I used to think “gay marriage” was a good thing, bc if nothing else, it promoted monogamy. But I have thought better of it recently. Why? Because I see the erosion of our traditional institutions, encouraged by Socialists and Communists contributing to our campaign coffers. The rest of the world would like nothing more than to see our core values destroyed, so that we become as morally bankrupt as they are.

    So now my next question is, am I allowed to hold an opinion different than this most recent vocal minority, without being accused of being “homophobic”? Somehow I doubt it. One is only allowed to agree with them – if you disagree, you are the devil incarnate. So what else is new?

  4. David M. Greenwald

    “If the CA Supreme Court overturns Prop 8, this decision will be appealed to the US Supreme Court where it will likely be voided.”

    I don’t think it will and talking to the attorney last night, Elizabeth Gill pointed out that it’s really being argued on a state issue and so there’s probably not cause for the SCOTUS to take up this case. And I don’t know if they have the interest in doing so. They would have to weigh very heavily into state law, and I doubt they are eager to do that. There’s really not a federal issue at stake here.

  5. Civil unions are better

    “Today in San Francisco, the California Supreme Court will hear oral arguments from the National Center for Lesbian Rights (NCLR), ACLU, and Lambada legal challenging the November 5 passage of Proposition 8”

    I love this. The CA will “hear” arguments from the ACLU and others. As if they hadn’t made up their mind already and are merely putting on a Dog and Pony show.

    There’s really not a federal issue at stake here.

    Really? Seems like the no-on 8 people have said there is a federal issue, and that is their so-called “civil rights.”

    Now all of a sudden, states rights are important, unless you happen to be a majority of the state electorate, in which case your vote shouldn’t count because the all powerful CA SC said so.

    Blatant disenfranchisement of CA voters at the polls 2x now is a blatant civil rights violation. Many of these voters were Af. Am. and now have had their ballots tossed out twice. The Fed supreme court should step in and let the CA supreme court know that it is not judge, jury, and executioner. 😉

  6. David M. Greenwald

    Did you watch the proceedings, it was fascinating?

    “Seems like the no-on 8 people have said there is a federal issue, and that is their so-called “civil rights.” “

    They were primarily arguing a state issue today–i.e. whether this was a proper revision of the state constitution nullifying a fundamental right. This was not a federal issue.

    Again when I spoke to the lawyer last night from the ACLU she strongly discounted the possibility of this going to the SCOTUS and I think it is unlikely they would hear the case.

  7. Ryan Kelly

    Are we a democracy? and others –
    Yes, we are. This is how our government works. Remember, there are three branches of government. You seem to think that there is a fourth – the “initiative” branch.

  8. David M. Greenwald

    Ryan: We’re a democratically elected Republic that contains within it checks and balances including a judiciary that has the power to overrule the will of the people and the will of the legislative branches. There are additional checks over the power of the judiciary. I don’t think the sovereignty of the people claim is going to be an issue the SCOTUS wants to grapple with, too much potential to open up pandora’s box without enough upside.

  9. Lets get it right

    The problem is the aggressive push for a small minority to achieve some symbolic “progress” that causes the majority to regress.

    I can not comprehend that statement at all. How will Gay marriage impact my life in any way? I guess i live in a different world than you do. I have a wife and three kids, a couple of sisters, three brothers and a whole bunch of in-laws along with a hoard of nephews and nieces. Within the crowd there are a couple of Hispanics, a guy from Switzerland, a Jew and quite a few Catholics. Nobody in the entire group was for Prop 8. There was no sense to that proposition and nobody thought they were losing anything by voting against Prop 8.

    I do not understand what you fear!

  10. anonymous

    When people say that redefining marriage to include people marrying someone of their same gender is a threat to marriage, they do not mean their own personal marriages, they mean that when you change the definition of something, it is no longer the same thing that it was before. If marriage is simply two people who love one another making a lifetime commitment to each other, then naturally gay marriage makes sense.

    But prior to reliable contraception and readily available access to abortion, marriage meant much more than two people who love each other making a commitment. It was about love of each other, of course, but it was also about children.

    The reason that marriage is important to society and has taken on all sorts of legal dimensions is because it is where the next generation is born, nurtured and educated to carry us into the future. It is about the future, and in the future it will be about the past. Think about your family tree, your great-great-great grandparents and you think of grandmothers and grandfathers, not two grandmothers or two grandfathers.

    This is where the interest of society in general is rooted. It is the reason we all pay taxes to support public schools, whether or not we have children, or whether or not we send our children to public schools. It benefits everyone to have the younger generation well brought up and educated.

    The evidence that children who are raised in an intact home with their own mother and father do better than children raised in other situations is overwhelming. It is a statistical fact that cannot be disputed.

    This does not mean that everyone who is not in that situation is destined for disaster, but it certainly does imply that the two situations are not equal. When a child is raised by a single parent, it has generally meant that the other parent is dead or has left. We do not condemn this situation, but neither do we celebrate it. I was a single mother myself for five years, and I could not even begin to adequately describe how terribly difficult it is.

    Two parents of the same sex are not the equivalent, either. A child needs a mother and a father. And despite my history as a feminist, I can no longer deny the difference between men and women.

    We do not have enough data or history to know how children raised by two gay or lesbian parents will grow up. Maybe they will be just fine. The children I know who are being raised by lesbians seem to be doing alright, but they have many challenges that they would not have if their own two biological parents were raising them.

    Changing the definition of marriage in order to claim that gay marriage is absolutely equal in every way to heterosexual marriage seems to be more about not hurting someone’s feelings than about the best environment for raising children.

    In fact, during the campaign, the anti-Prop 8 folks adamantly denied that if gay marriage became legal, it would have to be portrayed in the schools as the absolute equivalent of heterosexual marriage. Why would they deny it? How could anyone who supports gay marriage object to teaching children about it? We certainly would not oppose teaching children that all races are equal.

    But being gay is not like being a member of a racial or ethnic minority. There have been homosexuals in every culture that we know of, and yet we still do not know that much about it. Some people say it is a fixed state of being, but that does not explain bisexuality, or people who apparently change their sexual orientation in their middle age. They often claim that they were always gay, but I find that hard to believe. A man cannot fake sexual intercourse with a woman to the extent that it results in several children over several years.

    One thing we do know for sure. No one ever sat down with their parents and said, “Guess what? I’m Black.”

  11. Don Shor

    “Think about your family tree, your great-great-great grandparents and you think of grandmothers and grandfathers….”
    If you go back five generations, those marriages probably predate the 1862 act which made polygamy illegal in the United States.

    What you are doing is singling out one practice — gay marriage — and denying specific rights to one group of people because of the hypothetical threat to ‘family’. But divorce, which is perfectly legal, is a far greater threat to families. Denying homosexual couples the right to marry seems incongruent when heterosexuals are free to enter into any number of serial marriages.

  12. Lets get it right

    The important part of marriage is the commitment between two people to each other. If you are worried about marriage you should be promoting the importance of that commitment. About half of the people I know have been divorced and as far as I am concerned that does not demonstrate much interest in the institution of marriage. I would bet that about half of the people who voted for Prop 8 had also divorced partners somewhere along the way. I think the notion of “traditional” marriage is being held up as a way to discriminate.

    There are plenty of married heterosexual couples who choose to not have children – are they to be held in contempt and their relationships relegated to something other than marriage?

    You claim that married people will be hurt if Gay couples are allowed to to wed. Please explain that because I have been married for 34 years I feel quite the opposite. I would not feel hurt in any way and actually it bothers that it has not already happened.

  13. Anon

    The divorce issue is a red herring. Marriage is a traditional institution, that needs to be kept that way, as the ideal model to strive for. It is much as “In God We Trust” on our money – oh but that is right, there is a move afoot to sanitize away that phrase from public life too. Much of this is rooted in an all out attack on the Christian religion, which is troubling.

    Why is it such a terrible thing to ask that the def’n of marriage be left alone, w the institution of civil unions that offer all the same protections as a marriage does. Simple solution that should make everyone happy – if this were about civil rights. But it isn’t. It is all about legitimizing a life style.

    Well, I’ve got news for you – being gay is not normal. It is a normal anomoly. There is a difference. Ooooooooooh, this should start the comments rolling! What a radical notion!

  14. Lets get it right

    divorce issue is a red herring

    So you you are saying the traditional institution must be upheld because it is the root of society, yet you are willing to throw out the vows. Are you really for traditional marriage or simply against a lifestyle you are uncomfortable with?

  15. madame shoes

    Oh yes, and did you know that man Ken Star is one of the justices preciding? Is this the same “special prosecutor” that was employed by the republicans during the Clinton administration to investigate the Monica Lewinsky scandal?
    How the F$%%#$ did this jerk get into the California supreme court?
    Says alot about California and the republican underground ruminating the streets and government agencies, ready to attack and take away our civil rights..
    We need more than just the changing of the guard in Washington.It’s gonna have to happen in the state and local government agencies.

  16. anonymous

    “What you are doing is singling out one practice — gay marriage — and denying specific rights to one group of people because of the hypothetical threat to ‘family’. But divorce, which is perfectly legal, is a far greater threat to families. Denying homosexual couples the right to marry seems incongruent when heterosexuals are free to enter into any number of serial marriages.”

    I am not singling out one practice, and I am certainly not trying to diminish the devastating consequences of divorce. I am saying that children do best with a mother and a father who are married to each other. This does not mean that if they don’t have that, they shouldn’t be allowed to have anything, I am just saying this is better than any other alternative, including polygamy, which none of my ancestors were involved in as far as I have traced back to the early 1500’s.

    Try to stay on topic, this is a redefinition of marriage and what its purpose is. That does not necessarily mean that it is wrong to change the definition if it no longer fits, and there is certainly plenty of evidence that it does not.

    But believing that the best thing for children is a good marriage between their biological parents, (one man, one woman)does not make me a bigot. It is not discrimination because it is not about equality, there are lots of limits on who can marry whom, you cannot marry your siblings, or more than one person, or even your first cousin in California. Is this evidence of bigotry against polygamists, or cousins who might fall in love with one another? If we remove all limits, then marriage has no real definition and can be whatever anyone wants it to be. Maybe that is the solution, but then it has a different meaning for everyone and hence, no real meaning for anyone.

    It seems to me that what is really happening is that people who feel resentful towards married people for whatever reason, having been divorced, never having found someone who wanted to marry them, or wanting to marry someone who was already married or of the same gender, are going to redefine marriage until it has no meaning and will no longer be relevant to anyone. That is what has already happened in Scandinavia and is happening in the rest of Europe.
    Is this a bad thing? I don’t know. But it is a major change to our society.

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