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Calif. court takes up Prop 8 lawsuit, but allows it to remain in effect during interim

SAN FRANCISCO (BP)–The California Supreme Court agreed Nov. 19 to consider the constitutionality of Proposition 8, but — in a win for supporters — allowed the amendment, which prohibits “gay marriage,” to remain in effect during the interim.

In recent days both sides had urged the court to take up the matter in an expedited manner and not to allow the case to wind its way through lower courts, where it could take years to finalize.

Opponents of Prop 8 also had urged the high court to issue a stay and allow same-sex couples to “marry” while the case is being considered. The court, though, declined to do that, which possibly could be an indication it believes Prop 8 opponents are likely to lose. The two-page directive by the court said only one of the justices, Carlos R. Moreno — who voted with the 4-3 majority in May to allow “gay marriage” — would have issued a stay.

Perhaps most significantly, the order said Justice Joyce Kennard — who also was in the majority in May — voted against taking up the case concerning Prop 8’s constitutionality. It is a possible sign she believes Prop 8 is valid and opponents don’t deserve a hearing.

A date for oral arguments was not set but apparently will take place early next year. Passed 52-48 percent, Prop 8 overturned the court’s May decision legalizing “gay marriage.” California became one of 30 states with a constitutional marriage amendment.

Andrew P. Pugno, the lead attorney representing ProtectMarriage.com — the campaign behind Prop 8 — told Baptist Press he was “very pleased” with the court’s decision and “very optimistic” about the outcome. He also said it’s “really dangerous to speculate” as to whether the court’s directive gives any hints as to a future ruling, although he did say there seems to be a bit of bad news and some possibly very good news.

“Justice Moreno’s suggestion that Prop 8 should be suspended is cause for concern,” Pugno said. “On the other hand, [the decision by] Justice Kennard — who was one of the strongest voices behind the gay marriage decision — … suggests that she thought that the challenge to Prop 8 had so little merit that it wasn’t worth the court considering.”

Stephen Barnett, a retired University of California-Berkeley law professor, said as much, telling the San Francisco Chronicle he believes Kennard “is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review.” Dennis Maio, a former staff attorney for the California Supreme Court, told the Chronicle, “I would not think it would be encouraging” for Prop 8 opponents.

If Kennard joins the three justices who were in the minority in May, then Prop 8 will be upheld, even without the votes of the other justices.

“It is not a credible argument that [Prop 8 opponents] are making,” Pugno said. “It would really be out of the ordinary for the court to go the direction that [opponents] are suggesting.”

Opponents of Prop 8 filed a similar lawsuit during the summer in an attempt to keep the proposal off the ballot, but the court turned away the suit and allowed Prop 8 to go before voters. Conservatives hope the court’s early action is an indication of how it will rule next year.

The court in its Nov. 19 directive listed three questions it wants lawyers on both sides to address:

— Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

— Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

— If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

At issue is a lawsuit filed by Prop 8 opponents, including the city of San Francisco, the ACLU and homosexual activist groups, asserting that Prop 8 amounted to a revision of, rather than an amendment to, the state constitution. Revisions — in essence, drastic changes — must first go through the legislature before going to voters. Prop 8 was placed on the ballot via citizen signatures and did not go through the legislature. It went into effect the day after it passed.

In legal briefs filed Nov. 17 Pugno argued that given the “constitutional and social significance” of Prop 8, the issue “should be resolved as soon as possible” and “should ultimately be decided by this Court.” Sending the case to lower courts, he said, would only result in uncertainty and delay and would be damaging to the “interests of justice and the political system itself.”

Pugno, in the briefs, urged the court to uphold Prop 8, arguing that declaring it invalid “would be unprecedented and would constitute a serious encroachment on the people’s sovereign right to amend the Constitution and set basic public policy through the initiative process.” If the court follows its own precedent regarding citizen-backed constitutional amendments, Pugno wrote, it will allow Prop 8 to stand. The “power to amend” the state constitution is “broad and deep and by nature populist,” Pugno wrote, and “has often been used to make significant changes,” even “to override judicial interpretations of the Constitution with which the people disagree.”

“Petitioners’ arguments that Proposition 8 constitutes a revision to the Constitution are highly abstract and find no support in California case law or in the judiciary’s long tradition of respectful deference to initiative amendments,” the legal briefs stated. “Other courts addressing similar revision/amendment arguments under closely analogous constitutional provisions have rejected them…. Proposition 8 is simple, narrow, and targeted to a single issue. It restores the definition of marriage to what it was and always had been prior to May 15, 2008 — nothing more.”

Pugno also noted that three California Supreme Court justices — as well as two state appeals court justices — had refused to legalize “gay marriage.” Because of that, he wrote, the case’s outcome “was by no means self-evident.”

“The effect of Proposition 8 is limited to reinstating the status quo that existed before the Marriage Cases decision took effect on June 16, 2008,” he wrote. “[Prop 8 opponents’] arguments would most likely have been summarily rejected if Proposition 8 had been enacted before the Marriage Cases decision, and they should be rejected now for the same reasons. The revision/amendment analysis does not turn on the fortuity of timing.”

Equality California, a group in California that backs “gay marriage,” issued a statement after the court’s Nov. 19 action, saying Prop 8 should be overturned.

“If permitted to stand, Proposition 8 would be the first time an initiative has successfully been used to change the California Constitution to take away an existing right only for a particular group,” the statement read. “Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.”

Ron Prentice, chairman of ProtectMarriage.com, sent an e-mail to supporters Nov. 19, saying the campaign was urging the court to hear the case “to avoid years of costly litigation.”

Said Pugno, “There’s no good reason to endure years of litigation and potentially having Prop 8 suspended during that time when we have the opportunity to shortcut the entire court system and go straight to the final decision-maker.”

Prentice said that even if his side prevails in court, the political battle is not over.

“Because we fully expect to prevail in court, we expect that, at some point, we will need to defeat a ballot proposal by advocates of same-sex marriage,” Prentice wrote. “Our opponents have threatened such a proposal as early as 2010. We are already beginning the planning process to lay the groundwork to defeat a future proposed initiative that would legalize gay marriage…. We are fully confident that the California Supreme Court will uphold Proposition 8, even if some members of the Court disagree with the issue.”

The full text of Prop 8 reads, “Only marriage between a man and a woman is valid and recognized in California.”

Messengers to the Southern Baptist Convention annual meeting in June passed a resolution urging Southern Baptists in California to work and vote for Prop 8 and for all Southern Baptists and other Christians to pray for its passage. The resolution passed nearly unanimously. Additionally, in September the executive board of the California Southern Baptist Convention unanimously passed a resolution endorsing the amendment. This month, messengers to the California Southern Baptist Convention passed a resolution affirming their support for Prop 8.
Michael Foust is an assistant editor of Baptist Press.

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