State Supreme Court rejoins Prop. 8 battle

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Court plunged back into the same-sex marriage wars Wednesday, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.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? And more of  State Supreme Court rejoins Prop. 8 battle