Thursday, November 20, 2008

Prop 8 Update

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The California Supreme Court has agreed to hear legal challenges to Prop 8, the California Ballot initiative that outlawed gay marriage. The vote was 6 - 1 in closed session. It is likely that arguments will be heard next March. The LA Times has more details.

Posted by DocJess at 9:18 AM

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chad nielson's avatar

chad nielson · 854 weeks ago

They have got to be careful here. The supreme court is not yet ready to hear this battle (I mean the SCOTUS) and rule in favor, and it they were to here it and rule against gay rights it would set us back a long long long time.
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Mike in Maryland · 854 weeks ago

The main question before the California Supreme Court is whether Prop 8 was properly an initiative - making minor changes in the state Constitution, or should have been considered a substantial revision of the state’s Constitution, and therefore requires legislative approval. It was voted on as if it made minor changes in the state Constitution, but if the Cal SC determines it made a major revision, then it could overturn the proposition, or order the legislature to vote (if post-faco approval is allowed). I think the usual route is for the legislature to vote, then submit to the voters - if that is the case, Prop 8 is dead for now as proper procedures were not followed.

Since the question involves the state Constitution, and the rules of amending that Constitution, and US Federal Constitutional rights have NOT been brought up in the current suits in front of the Cal SC, it would be difficult for any decision in the cases being brought before that court to be appealed to a federal court. The US Supreme Court does not hear cases that involve the state Constitution unless federal rights are invoked, and then most likely the process would have to go through the entire federal court system - trial at District Court, Appeals Court review (panel and/or en banc), then finally to the SCOTUS. Except in rare circumstances, the SCOTUS doesn't allow steps to be skipped, and thus the cases usually take from two to six years from initial filing of the case to decision by the SCOTUS.
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tmess2's avatar - Go to profile

tmess2 70p · 854 weeks ago

Assuming that the question presented is as described above, SCOTUS would not have jurisdiction to take the case.

If there was a federal question involved, SCOTUS does regularly take cases directly from State Supreme Courts. State courts do have jurisdiction over federal questions and are not considered inferior courts to federal courts (in the legal sense) except for SCOTUS.
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DocJess 71p · 854 weeks ago

The question is whether the CA outcome is one of state law (marriage) or civil rights, which would be Federal. The Loving v. Virginia case was a marriage case, but the marriage took place in DC and not VA, plus it was a civil rights issue, so the Supremes heard it, and struck down the state law. (1967)

So, if a Mass or CT married gay/lesbian couple moved to CA and were denied rights, and it was in some way added to the CA decision making process, it could go up the chain. Actually, I've been waiting for that type of case in a state NOT California to make it up the rungs.
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tmess2 70p · 854 weeks ago

Civil rights can be either state or federal. The issue is whether it is a right granted by the federal constitution or by the state constitution. So far, most of the state courts have been very careful to find the right in their state constitution.

The moving thing does not necessarily make it a federal issue as each state is free to determine what "rights" go along with marriage and to limit those rights to marriages which would be permissible in that state.
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