In a bundle of rulings issued Wednesday, the California Supreme Court buoyed the hopes of Proposition 8 supporters-and offered a glimmer of hope that some division now exists among the four justices who in May ruled same-sex marriage a constitutionally protected right.
On Nov. 4, the day after the passing of Prop 8 affirmed traditional marriage in the state by a margin of 52 to 48 percent, three groups peppered the court with anti-Prop 8 lawsuits. At their core, all three suits argue that the measure so fundamentally changes California law that it is a revision of the state constitution rather than an amendment. The suits also seek to uphold same-sex marriages performed in California prior to the measure passing.
Justice Joyce Keener, who was among the four high court jurists who affirmed same-sex marriage in May, wrote on Wednesday that while she favored ruling on the viability of gay marriages performed since then, she did not want to consider Prop 8's constitutionality.
"That was an encouragement," said Brad Dacus, president of the Pacific Justice Institute, which filed a pro-Prop 8 brief in the case. "We're hopeful that [Justice Keener] might be peeled away from the three justices who ruled gay marriage a fundamental right. All we need is one judge to break away."
Frank Schubert, campaign manager for ProtectMarriage.com and Proposition 8, said existing case law makes Prop 8 foes' "constitutional revision" argument almost certain to fail. In 1978 Californians used the initiative process to curtail the ability of lawmakers to raise property taxes. In 1990 they enacted term limits for legislators. Both measures were challenged in court as illegal constitutional revisions; both challenges failed.
The closest legal parallel to Prop 8 involves the death penalty, Schubert said. In 1971 Golden State voters reinstituted capital punishment after the state Supreme Court had ruled it a fundamental violation of prisoners' constitutional right to life. That measure also survived a constitutional challenge.
"I know there's a general unease that the same people who threw out Prop 22 [the 2000 ballot initiative that initially banned same-sex marriage] will throw out Prop 8, but this is a very different situation," Schubert said. "Even though the justices may not personally agree with what the voters have done, there's an overwhelming body of law that gives the people the right to do it. We're going to win this case. I just don't have any doubt."
Opponents of Prop 8 had also asked the high court to halt the measure's implementation pending the suits' outcomes. The court denied that request Wednesday and also dealt another blow to plaintiffs, granting a request by ProtectMarriage.com, Prop 8's primary backers, that its own lawyers be allowed to argue the measure's constitutionality in open court. Had the court denied that request, the only man arguing for the people would have been California Attorney General Jerry Brown.
During the election campaign, the famously liberal lawyer was a vocal foe of the measure, and was among those listed in official election pamphlets as opposing it. It was also Brown's office that rewrote the initiative's "title and summary." Prop 8's authors had written the measure this way: "Only marriage between one man and one woman is valid or recognized in California," using the same language that voters overwhelmingly affirmed in the Prop 22 landslide of 2000.
The California secretary of state certified Prop 8 using that language. But Brown's team in July mandate a revision, reframing the initiative as a removal of rights: Prop 8, the new language read, "eliminates right of same-sex couples to marry." In July, Sacramento Bee columnist Dan Walters called Brown's move "a cynical act," adding, "a referee shouldn't misuse the rules of the game to favor one side over the other."
That's why Prop 8 supporters are happy that it will not be Brown alone, but also their own legal team defending the measure before the California high court. "This order means that voters will get their day in court and ensures that voters will have a vigorous defense of Proposition 8," said Andy Pugno, ProtectMarriage.com's general counsel.
The state high court has asked for briefings from Attorney General Jerry Brown and lawyers for Prop 8 by Dec. 19, with amicus briefs due on Jan. 15. The court will hear oral arguments sometime in early 2009.