[Volokh] Eugene Volokh: California Supreme Court Agrees To Decide Constitutionality of Prop. 8:

[notify at powerblogs.com]

Posted by Eugene Volokh:
California Supreme Court Agrees To Decide Constitutionality of Prop. 8:
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1227133817


   The [1]AP reports:

     California's highest court agreed Wednesday to hear several legal
     challenges to the state's new ban on same-sex marriage but refused
     to allow gay couples to resume marrying before it rules.

     The California Supreme Court accepted three lawsuits seeking to
     nullify Proposition 8, a voter-approved constitutional amendment
     that overruled the court's decision in May that legalized gay
     marriage.

     All three cases claim the measure abridges the civil rights of a
     vulnerable minority group. They argue that voters alone did not
     have the authority to enact such a significant constitutional
     change....

     The court directed [Attorney General Jerry] Brown and lawyers for
     the Yes on 8 campaign[, who had joined the challengers in arguing
     that the court should consider the case,] to submit their arguments
     for why the ballot initiative should not be nullified by Dec. 19.
     It said lawyers for the plaintiffs, who include same-sex couples
     who did not wed before the election, must respond before Jan. 5.
     Oral arguments could be scheduled as early as March ...

   I think it's good that the California Supreme Court agreed to decide
   the case, and get it resolved sooner rather than the later. It's
   important to know what the law is on this, especially given the
   likelihood that Prop. 8 [2]invalidates same-sex marriages that had
   been entered into after the earlier court decision but before Prop.
   8's enactment. I also think that the California Supreme Court will
   reject the state constitutional challenges to Prop. 8, and conclude
   that Prop. 8 amends the state constitution in a way that supersedes
   the court's interpretation of the preexisting constitutional
   provisions.

   Of course, Prop. 8 can't overrule any federal barriers to its
   enactment. I think there are no such federal barriers, but it's not as
   clear to me that the California Supreme Court will agree. And if the
   California Supreme Court invalidates Prop. 8 on federal constitutional
   grounds, for instance on the grounds that it's precluded by the Romer
   v. Evans decision or that the federal constitution bars discrimination
   against same-sex marriages, then the issue will be reviewable by the
   U.S. Supreme Court (and I think the U.S. Supreme Court will indeed
   agree to review it).

References

   1. http://hosted.ap.org/dynamic/stories/G/GAY_MARRIAGE_LAWSUITS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
   2. http://www.volokh.com/posts/1225923130.shtml