Proposition 8 and the California Supreme Court

Thanks to Dan for inviting me to return for a guest stint.  I have to say, I'm disappointed that Zak already blogged about snuggies, Dan about meshugene men, and Brian about operation tough love -- there goes most of my planned posts for the month....

To get started....  Previously on Prawfs Blawg, there had been a number of indepth posts on Proposition 8 -- the California ballot initiatve, which passed by 52% in the November general election (see, e.g.,  a Bill Araiza post, a Rick Garnett post, an Ethan Leib post, and others). The initiative is designed to restrict the definition of marriage to opposite-sex couples, by providing that "Only marriage between a man and a woman is valid or recognized in California."   I thought readers might be interested in a brief post providing some details on California Supreme Court hearing on the proposition (LA Times Article), which is planned from 9 am to noon tomorrow.

Tomorrow the California Supreme Court may provide some insight into whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex California marriages will remain valid.  Uniquely, the session is planned to be televised and a number of protests are planned.  I understand that at the San Francisco Civic Center a giant outdoor screen will be set up (near the courtroom) so that thousands can watch the hearing. The legislature has weighed in (although to what legal impact, it's hard to imagine) by on Monday passing two resolutions opposing the legality of the proposition. 

The argument should be interesting.  Lawyers representing same-sex couples and a group of local governments (headed by the city of San Francisco) will have 90 minutes for argument. The lawyers presenting the arguments will be Shannon Minter, legal director of the National Center for Lesbian Rights; Michael Maroko, a partner of Los Angeles lawyer Gloria Allred; and Chief Deputy City Attorney Therese Stewart.  The supporters of Proposition 8 will have an hour. Pepperdine law school dean Kenneth Starr represents them.  Lastly, Deputy Attorney General Christopher Krueger will have half an hour to explain the state's position. California Attorney General Jerry Brown has declined to defend the initiative.

More than 62 amicus briefs have been filed, more than two-thirds of them in support of striking down the same-sex marriage ban (detailed information and a copy of all the briefs can be found on the court's webpage here)

The court plans to consider the following issues: "(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (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?" I understand the primary issue may be whether the proposed change to the California constitution is a revision or an amendment.  If a revision, then proposition 8 is insufficient to make the change. 

A couple of papers on the topic are now available on SSRN, written by California professors (see, e.g., Article and Article).  It will be very interesting to see what happens tomorrow.