Prop 8 Lawsuits Update and Predictions

Condstand Readers,

I'b sick. Since Suday. By node id runnig and by face hurts. Dever fear, tho, I'b taked this timb to read ub on the samb-sex barraige cases.

(SNIFF!)

So, fromb be to you:
________________________

Three Things You Should Know About the Prop 8 Litigation: 

Note: For the basics of the cases, my prior essay is here.

1) The State Supreme Court Will Probably Take The Case, But Will Not Stay The Effect of Prop 8

As I wrote last week, normally cases have to begin at the Superior Court, be appealed to the Appellate Courts, and then taken up by the State Supreme Court. However, if the issues presented by the case are (a) super-important and (b) need to be resolved right now, the Supreme Court can choose to take the case directly.

All proponents of same-sex marriage who have filed legal claims argue that the State Supreme Court should take up the case. They also argue that same-sex marriages should be allowed to continue while the courts sorts all this out.

One group that has officially joined the legal fray is the Campaign for California Families. Even they agree that this case needs to be decided right away by the State Supreme Court. (Though they [obviously] want Prop 8 to remain in effect while the cases are litigated.)(Their filing: Download motion_to_intervene.pdf.)

State Attorney Jerry Bown's office was asked to weigh in on this issue and his response was to (a) agree that the State Supreme Court should directly take the case, but that (b) the ban on same-sex marriage should remain in effect during the litigation. (Download state_atty_jurisdiction_argument.pdf.)

I believe that the Supreme Court will agree to take the case, not only because all parties agree that it should, but because this case does not present any "issues of fact." See, normally, the Superior Court is where people testify, widows faint on the stand, and killers confess. But in the Prop 8 cases, there is no need for testimony because these are all "purely legal" issues that are fought on paper by nerds who live in law libraries.

I also believe that same-sex marriages will continue to be banned while the Prop 8 cases are litigated. This is so for two reasons: (1) As Brown's court documents point out, if same-sex marriages are allowed after the passage of Prop 8 (starting today, for example) and then the Court upholds the Constitutionality of Prop 8 (six months from now, for example) figuring out the status of the marriages held in the interim would be a huge clusterfuck. And (2) since the Supreme Court is probably going to take the cases directly and not force the parties to go through all the lower courts first, if Prop 8 is stricken from the Constitution, the harm suffered by preventing same-sex couples from marrying will have been minimized by the (relative) quickness of judicial action.

2. There Are Six Lawsuits As Of Today

When I wrote about the Prop 8 cases last week, only three petitions had been filed against Prop 8. There are three more now. Here's a bit on each of the six cases:

a) Karen Strauss, et al. - This case is brought by Equality California and a buncha gay couples who want to git hitched but now can't. (Download strauss_petition.pdf.)

BONUS: In support of their claims, the plaintiffs in the Strauss case filed 14 declarations by people who want to marry and people who already have, and their families. These are interesting and very moving essays. For example, Phyllis Lyon's says, "Del and I were in a loving, committed relationship for more than 55 years but we only had 72 days (before Del's death) to enjoy the dignity and respect that heterosexual married couples have long enjoyed." (Download strauss_declarations.pdf.)

b) Tyler, et al. - This case is brought by a lesbian couple who were both parties to the original In Re Marriage case and who are already married, plus the public in general. (Download tyler_petition.pdf.)

BONUS: The inimitable Gloria Allred is the attorney for the Plaintiffs in this case. And, while people who are already married might not be able to show that they will be harmed by Prop 8, this is the first court filing that pokes at the issue of retroactivity.

c) San Francisco, Santa Clara and Los Angeles - Well, you know. That's us. (Download amended_petition_from_sf_sc_la.pdf.)

BONUS: In a letter to the Court, the Pacific Justice Institute argues that these municipalities don't have "standing" to challenge Prop 8 on behalf of their citizens because thousands of residents of each of these counties voted in favor of Prop 8. (Hell, Prop 8 won Los Angeles.)  While I don't think the court will bounce our case on this argument, it will be interesting  to see what, if anything, the court says about it.

I LOVE THE MOST RECENT THREE CASES

d) Equal Rights Advocates and California Women's Law Center - These (fellow) wimmins libbers argue that, if the process that brought us Prop 8 is legitimized, women stand a distinct chance of being harmed by whatever rights some unholy alliance of self-loathing chicks and unattractive men want take away from women as a group. They point out that the 1879 California State Constitution prohibited Chinese people from voting. (Download equal_rights_advocates_petition.pdf.)

e) Asian Pacific American Legal Center, et al. - This petition was filed by a group of organizations dedicated to the protection of the rights of minorities - including the NAACP. As with the womens' groups, these folks see the danger to racial and ethnic minorities that could ensue if we make civil rights into a popularity contest. (Download apa_legal_center_petition.pdf.)

f) California Council of Churches - Plaintiffs in this case are a group of churches, pastors and other religious folks who recognize that, "If the Court permits Proposition 8 to take effect, religious discrimination similarly could be written into California's Constitution." (Download california_council_of_churches_petition.pdf.) They also have this awesome guide on religion and gay marriage. (Download faith_guide_to_gay_marriage.pdf.)

3. The Campaign for California Families Will Probably Be Able To Join The Suit

I wrote last week about the fact that "pro-family" groups who are opposed to same-sex marriage were kicked off the In Re Marriages case because they couldn't prove that allowing gay people to marry would cause their members any harm.

Well, the Campaign for California Families is once again attempting to become part of the lawsuits. This time, though they have a better argument: because its members helped draft Prop 8, collect signatures to put it on the ballot, and otherwise supported it's passage, removing Prop 8 from the Constitution would "overturn those efforts." Such a specific harm will probably be enough to allow the CCF to be a party this time. (See Motion to Intervene at #1, above.)

Got questions? Email them to me (melissagriff@gmail.com) or leave them in the comments and I'll answer them during one of my brief periods of lucidity between chugs of cold medicine.

--Belissa

Comments

[Paul Hogarth]

San Mateo County has joined Dennis Herrera's lawsuit.

[kwk]

Realizing that miscegenation is rather mote in this case, am still curious as to whether Loving v. Virginia 1967 has any bearing on this current situation.

[Addie]

Hi, Melissa. I hope you're feeling better!

I was wondering what your take is on the court's order released yesterday (19th Nov).

The order didn't mention the three later lawsuits (as far as I could tell). What happens with them now?

I was also wondering what you make of Justice Kennard's vote to deny the petitions.

Thanks and get better soon.