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The San Francisco Chronicle

State Supreme Court Rejoins Prop. 8 Battle

Bob Egelko

Dennis Herrera, San Francisco's city attorney, joins Santa Clara City Councilwoman Ann Ravel in a news conference in Herrera's office. (Mike Kepka / The Chronicle)

The state Supreme Court plunged back into the same-sex marriage wars
Wednesday, agreeing to decide the legality of a ballot measure that
repealed the right of gay and lesbian couples to wed in California.

Six months after its momentous ruling that struck down the state's
ban on same-sex marriage, the court granted requests by both sponsors
and opponents of Proposition 8 to review lawsuits challenging the Nov.
4 initiative.

The vote was 6-1, Justice Joyce Kennard dissenting.

However, the court refused, 6-1, to let same-sex marriages resume
while it considers Prop. 8's constitutionality. Justice Carlos Moreno
cast the dissenting vote.

Approved by 52 percent of voters, Prop. 8 restored the definition of
marriage - a union of a man and a woman - that the court had overturned
May 15. Kennard and Moreno voted with the majority in that 4-3 ruling.

The court agreed Wednesday to review two arguments by opponents of
Prop. 8: that the measure exceeds the legal scope of a ballot
initiative by allowing a majority to restrict a minority group's
rights, and that it violates the constitutional separation of powers by
limiting judicial authority.

The justices also asked for arguments on whether Prop. 8, if
constitutional, would nullify 18,000 same-sex weddings performed
between when the court's marriage ruling took effect in mid-June and
Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the
state's chief lawyer, contends those marriages are legal, but sponsors
of the initiative disagree.

The justices asked for written arguments to be submitted through
Jan. 21. The court could hold a hearing as early as March, and a ruling
would be due 90 days later.

Kennard's vote a bad sign?

While both sides cheered the court's decision to take up the cases,
Kennard's lone vote to deny review could spell trouble for opponents of
Prop. 8.

Kennard is the court's longest-serving justice, having been
appointed in 1989, and has been one of its foremost supporters of
same-sex couples' rights. Without her vote, the May 15 ruling would
have gone the other way. But she wrote Wednesday that she would favor
hearing arguments only about whether Prop. 8 would invalidate the
pre-election marriages, an issue that would arise only if the
initiative were upheld.

"It's always hard to read tea leaves, but I think Justice Kennard is
saying that she thinks the constitutionality of Prop. 8 is so clear
that it doesn't warrant review," said Stephen Barnett, a retired UC
Berkeley law professor and longtime observer of the court.

For those seeking to overturn Prop. 8, "I would not think it would
be encouraging," said Dennis Maio, a San Francisco lawyer and former
staff attorney at the court.

Speedy timeline

All parties were pleased, though, at the prospect of a quick
decision. If the justices had dismissed the suits, the cases could have
been refiled in a county Superior Court and would have reached the high
court only after lengthy appeals.

"We could have been looking, easily, at two or three years of
litigating this issue," said Shannon Minter, legal director of the
National Center for Lesbian Rights and a lawyer for same-sex couples in
one of the suits. "It's a great relief that the court recognizes the
importance of resolving this quickly."

Similar reactions came from others on opposing sides in the case.

"This is a great day for the rule of law and for the voters of
California," said Andrew Pugno, attorney for Protect Marriage, Prop.
8's sponsoring group, which won permission from the court Wednesday to
join the case and present arguments at the hearing. He said he was
confident the measure would be upheld and was particularly pleased that
the court allowed it to remain in effect while the lawsuits are argued.

San Francisco City Attorney Dennis Herrera, whose suit on behalf of
the city has been joined or endorsed by 11 other cities and counties,
said he was grateful the court accepted the cases.

"This goes far beyond same-sex marriage," Herrera said. "It's about equal protection of the law for all Californians."

Amendment or revision?

The lawsuits that the court agreed to review were filed by two
groups of same-sex couples, a gay-rights organization, and San
Francisco and other local governments. Civil rights, religious and
feminist organizations have since filed separate suits challenging
Prop. 8 that the justices may add to their docket.

All the suits argue that Prop. 8, drafted as a state constitutional
amendment, makes such drastic changes that it amounts to a revision of
the Constitution.

Unlike constitutional amendments, which can qualify for the ballot
with signatures on initiative petitions, revisions can be placed on the
ballot only by a two-thirds vote of the Legislature or a state
constitutional convention.

The state's high court has defined a constitutional revision as a
fundamental change in government structure and has struck down only two
initiatives as revisions.

The last time was in 1991, when the court overturned provisions of a
measure that would have required California courts to follow federal
standards on criminal defendants' rights rather than relying on the
state Constitution to grant broader rights.

Opponents of Prop. 8 argue that it is a revision because it deprives
a historically persecuted minority of fundamental rights and leaves
courts powerless to intervene.

A ruling upholding the measure would leave any minority group
vulnerable to repeal of its rights by majority vote, the lawsuits argue.

Supporters of Prop. 8 say it is merely a constitutional amendment
restoring the traditional definition of marriage and leaves the
structure of state government unaffected. They contend that a ruling
overturning the measure would strike a blow to the people's power to
change their Constitution by initiative.

In its May ruling legalizing same-sex marriages, the court said
California's ban on such unions violated gays' and lesbians' right to
marry the partner of their choice and to be free of arbitrary

The court also said laws that discriminate on the basis of sexual
orientation are presumed to be unconstitutional, in the same category
as bias based on race or sex. That part of the ruling is unaffected by
Prop. 8.

Read the court's order

The state Supreme Court's order accepting anti-Proposition 8 lawsuits for review can be read at:

At issue

What is before the state high court:

1. Does Proposition 8 make such a far-reaching
change to California's Constitution that it amounts to a constitutional
revision, which requires a two- thirds vote of the Legislature to be
placed on the ballot?

2. Does Prop. 8 violate the constitutional
separation of powers by restricting judges' authority to protect the
rights of same-sex couples?

3. If constitutional, does Prop. 8 invalidate the
18,000 same-sex marriages that took place in California between June
16, when the court's ruling legalizing gay and lesbian unions took
effect, and the election?

What's next

Next steps for the Proposition 8 cases before the state Supreme Court:

Written arguments: The parties in the cases -
same-sex couples, gay-rights advocates and city and county governments
challenging the law, and the state attorney general and the Prop. 8
campaign defending it - are scheduled to file written arguments through
Jan. 5.

Briefs: Other interested individuals and groups
must file friend-of-the-court briefs by Jan. 15. The parties have until
Jan. 21 to reply to any of those briefs.

Hearings: No court hearing has been scheduled yet,
but it could take place as early as March. A ruling is due within 90
days of the hearing.

The lead case in Wednesday's order is Strauss vs.
Horton, S168047. Chronicle staff writer Erin Allday contributed to this

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