The state Supreme Court announced Wednesday that it would decide the constitutionality of Proposition 8, the anti-gay marriage measure voters approved by a slim majority on Election Day. At the same time it rejected requests that it stay enactment of Prop 8 until it decides in the matter, which would not occur until the summer of 2009.

The court directed lawyers in three of the cases it has received so far to brief it on three legal questions. Along with wanting to hear reasons why Prop 8 is invalid because it constitutes a revision of, rather than an amendment to, the California Constitution, the justices also asked if the measure violates the separation-of-powers doctrine under the California Constitution.  

If Prop 8 is not unconstitutional, the court asked what is its effect, if any, on the 18,000 marriages of same-sex couples performed before its adoption.

The court also granted supporters of Prop 8 their request to intervene in the cases.

In its order, the court established an expedited briefing schedule, under which briefing will be completed in January and oral argument potentially could be held as early as March. The justices would then have 90 days to issue their ruling.

The decision puts the court back at center stage in the contentious fight over whether same-sex couples in California deserve the right to marry. The Republican-dominated court ruled in May that the state's anti-gay marriage statutes were unconstitutional and that gay and lesbian couples deserved the right to wed the person they choose.

Voters overruled the court when they passed Prop 8, a constitutional amendment that defines marriage in California as only between a man and a woman. The measure passed with 52 percent of the vote on November 4.

Shortly thereafter same-sex couples and LGBT legal rights groups filed suit, arguing that because Prop 8 discriminates against a minority group it cannot be enacted through a simple majority vote. Rather, the lawsuits contend that Prop 8 is a revision to the state constitution, and therefore, can only be placed on the ballot by a two-thirds vote of the Legislature or through a constitutional convention.

San Francisco filed its own lawsuit arguing the same point, and has been joined by Santa Clara, San Mateo, Alameda, Los Angeles, and Santa Cruz counties, as well as the city of Los Angeles in the case.

"If allowed to stand, Prop 8 so eviscerates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority – even for protected classes based on race, religion, national origin and gender," stated San Francisco City Attorney Dennis Herrera this week. "Whether as public officials or officers of the court, we have a moral obligation to defend the abiding American principles of judicial independence, separation of powers and equal protection under the law from the corruption of narrow and momentary political agendas."

Several civil rights groups also filed their own petition asking the court to stop enactment of the anti-gay measure because it would mandate discrimination against a minority group. Filed by the Asian Pacific American Legal Center, Mexican American Legal Defense and Educational Fund, and the California NAACP, the groups' legal arguments mirror those made by city officials and LGBT legal groups in their lawsuits.

"We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community," stated Eva Paterson, president of the Equal Justice Society, which also joined the suit. "If the Supreme Court allows Proposition 8 to take effect, it would represent a threat to the rights of people of color and all minorities."

The California Council of Churches and other religious leaders and faith groups also filed their own petition requesting the court to invalidate Prop 8. The groups joining in the petition include the General Synod of the United Church of Christ, two Episcopal Bishops (of California and Los Angeles), the Progressive Jewish Alliance, the Unitarian Universalist Association of Congregations and the Unitarian Universalist Legislative Ministry of California, and the Northern and Southern California Nevada Conferences of the United Church of Christ.

"Proposition 8 poses a grave threat to religious freedom," stated the Reverend Rick Schlosser, executive director of the California Council of Churches. "If the court permits Proposition 8 to take effect, religious discrimination similarly could be written into California's Constitution."

Earlier this week state Attorney General Jerry Brown had urged the court to take up the matter so that the legal fight could be "promptly resolved." As California's top law enforcement official, Brown's office must defend Prop 8. He also told the court that he opposes requests that it stay implementation of the measure until it rules in the matter.

Prop 8's supporters also had urged the court to hear the lawsuits its opponents had filed. They have expressed confidence that the Supreme Court will uphold the validity of Prop 8 and joined with Brown in urging the Supreme Court to deny requests to stay implementation of the measure.

"Proposition 8 is simple, narrow, and targeted to a single issue. It restores the definition of marriage to what it was and always had been prior to May 15, 2008 – nothing more," the Yes on 8 campaign claimed in a statement released this week. "Whatever one's view of the wisdom of Proposition 8, the people of California have spoken and their will should be respected."

Legal conference

At a legal conference Friday, November 14 on the court's 2007-2008 term, a panel of law professors dissected six of the court's most contentious decisions, including the same-sex marriage cases and a decision that said physicians can not deny medical care to LGBT people based on their religious beliefs.

Kenneth Starr, the Duane and Kelly Robert Dean at Pepperdine University School of Law, said there have been "few issues so contentious or held the public's attention" as the marriage cases.

"It was not only the biggest blockbuster of this term, but the most important case brought down by any court in this century," said Starr, who had filed an amicus brief in the case opposing same-sex marriage.

Starr called the 4-3 ruling in the case a "landmark decision for the country" because it determined that sexual orientation deserves the same strict scrutiny under the law as do race and gender. He alluded to the fact that the arguments now being made in the Prop 8 cases were the ones that divided the court last spring.

"The role of the courts in protecting minorities seems to me what the case came down to and divided the court," said Starr.

He also noted that the fight over Prop 8 would not end in California.

"The proverbial elephant in the room is not Prop 8 and its future but federal law put in a place a decade ago and if it will be overturned by the democratic process," said Starr.

Attorney Victoria J. De Goff, a former president of the California Academy of Appellate Lawyers, said the key piece of the court's same-sex marriage decision lies in the majority's understanding that being allowed to marry the person one loves has sociological impacts.

"Marriage is crucial to a person's development as a person and important element of self expression," she said. "The right to marry is a fundamental right ... The constitution prohibits the exclusion of these rights based on sexual orientation. The court explained why it simply doesn't work to call it a domestic partnership. It turns into second-class citizenship."

With the Supreme Court building overlooking San Francisco's City Hall, the justices were likely impacted by seeing the thousands of same-sex couples lining up to marry in 2004, said Gerald F. Uelmen, director of the Edwin A. Heafey Jr. Center for Trial and Appellate Advocacy at Santa Clara University's law school.

"These are justices who look out the window. The justices looking out their windows onto the Civic Center and seeing the lines of people waiting to get married might have had some effect," he said. "Clearly, the court went out on a limb. The question now is if the voters sawed off the limb by enacting Prop 8."

Uelmen argued that the court would likely not toss out Prop 8, because doing so would mean the justices have the authority to revise the Constitution.

"I don't think the court is ready to admit they have the authority to revise the constitution," he said.