Written by Gregg Brekke
In a Nov. 19 order, the California Supreme Court denied requests to halt the enforcement or implementation of Proposition 8's ban on same-sex marriage, while at the same time agreed to rule on several concerns arising out of the passage of Proposition 8.
The court's order, issued in the first three cases that had been filed directly in the state's highest court challenging the validity of Proposition 8, directed the parties to brief and argue three issues.
First is a challenge to the validity of Proposition 8, based on the argument that it constitutes a revision of, rather than an amendment to, the California Constitution. Second is a question whether or not Proposition 8 violates the separation-of-powers doctrine under the California Constitution. Third, should Proposition 8 be deemed not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
The court issued its order in three cases filed on behalf of a variety of parties, including same-sex couples who seek to enter into marriage despite the passage of Proposition 8, a same-sex couple who married in California prior to the adoption of Proposition 8, and a number of cities and counties whose officials seek to issue marriage licenses to same-sex couples. Petitioners in each of these cases seek an order directing the relevant state officials to refrain from implementing, enforcing, or applying Proposition 8.
In issuing their petition to the court, the General Synod of the United Church of Christ, as well as the UCC's Southern California – Nevada Conference and Northern California – Nevada Conference, joined with the California Council of Churches; the Episcopal bishops of Los Angeles and California; the Progressive Jewish Alliance; the Unitarian Universalist Association of Congregations; and the UU Legislative Ministry in California.
In response to the petitions, the Attorney General filed a preliminary opposition, in which he urged the court to assume jurisdiction over these cases to decide the important legal issues presented, but also argued that the court should not stay the operation of Proposition 8 pending the court's resolution of the issues. The proponents of Proposition 8 also responded to the petitions, seeking to intervene as formal parties in the action and also urging the court to accept the cases for decision. The court's order granted the motion to intervene filed by the proponents of Proposition 8.
In its order, the court established an expedited briefing schedule, under which briefing will be completed in January 2009 and oral argument potentially could be held as early as March 2009.
Six justices — Chief Justice Ronald M. George, Justice Marvin R. Baxter, Justice Kathryn M. Werdegar, Justice Ming W. Chin, Justice Carlos R. Moreno, and Justice Carol A. Corrigan — signed the court's order, although Justice Moreno indicated that he would grant the requests to stay the operation of Proposition 8 pending the court's resolution of these matters. Justice Joyce L. Kennard would deny these petitions without prejudice to the filing in the Supreme Court of an appropriate action to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption.