Ruling could mean civil unions for all in Calif.

he California Supreme Court could decide that there are two kinds of same-sex couples: those who can’t get married, and those who already did.

A ruling that upholds both voters’ November decision to ban gay marriage and the 18,000 same-sex marriages conducted earlier in California could come off as a safe compromise. But it also promises to keep alive an issue that has split the state as few others have.

Such a decision would give same-sex marriage advocates an avenue to pursue a federal appeal, and an argument for compelling the state to, as Associate Justice Ming Chin put it, “get out of the marriage business.”

Justices on the high court appear hesitant to overturn Proposition 8, while also reluctant to invalidate same-sex marriages performed before it passed, legal observers agreed Friday.

During Thursday’s oral arguments on a trio of lawsuits seeking to overturn the ban, Chin and Chief Justice Ronald George seemed to anticipate the difficulty in reconciling the state constitution’s promise of equality with its commitment to giving voters wide discretion to pass laws.

See Ruling could mean civil unions for all in Calif.

The Associated Press

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Gay marriage on trial

California’s long, tortuous war over same-sex marriage enters its next phase on Thursday, when the state Supreme Court hears oral arguments on three lawsuits challenging Proposition 8, the controversial constitutional amendment that bans gay marriage.

The easy way to think about these cases — and the way most non-lawyers are likely to do it — is to decide which side of the issue you’re on and root for that side to win. In other words, if you support marriage between same-sex couples, you’ll want the cases to succeed so that Proposition 8 will be overturned. If you believe men and women should only be allowed to marry each other, you’ll hope the lawsuits fail.

That’s fine. It’s outcome-based. But frankly, it has very little to do with what the Supreme Court is going to consider in the oral arguments.

Instead, the argument in the courtroom will be broader and more abstract. Who makes law in a democracy? What should we do when laws contradict one another? Who is the ultimate sovereign in the state of California — the people at the polls or their written Constitution or their appointed judges or their elected legislators? Can fundamental constitutional rights — inalienable rights — be withdrawn from one group but not another?

These are big, thorny questions with implications that go well beyond whether gays are allowed to marry. What follows is a cheater’s guide to the issues at hand.

Remind us: How did we get here?

The battle over same-sex marriage sometimes seems endless. Gay couples have been trying to get married in California since the late 1970s, and their opponents have been working just as hard since then to ensure that it does not happen.

Here are some highlights @ Gay marriage on trial
Los Angeles Times – CA,USA

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America’s top civil rights groups and legal scholars agree: Invalidate Prop 8

(San Francisco, CA, January 21, 2009) In the last round of an expedited briefing schedule, final briefs were filed today by both petitioners and respondents in the lawsuits challenging Proposition 8. The briefs filed today by the National Center for Lesbian Rights, Lambda Legal, and the ACLU responded to the more than 60 amicus curiae, or “friend of the court,” briefs filed in the case last week.

Those amicus briefs highlight the extraordinary breadth of support for Petitioners’ argument that Proposition 8 is invalid. The supporters represent the full gamut of California’s and the nation’s civil rights organizations and legal scholars, as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups.

In amicus briefs filed last Thursday, the nation’s leading legal scholars argued that Proposition 8 is invalid because it seeks to eliminate a fundamental right only for a targeted minority, which cannot be done through the initiative process. Professors from the most prominent universities and law schools in California and the country authored briefs urging the Court to invalidate Proposition 8, including scholars from Harvard University, Stanford University, Yale University, University of California (Berkeley, Los Angeles, Hastings, Davis, Irvine), University of Southern California, University of Pennsylvania, Rutgers University, University of San Francisco, Loyola Law School, Santa Clara Law School, Chapman University, and Pepperdine University.

A brief authored by Hastings Law Professor Donna Ryu and joined by 20 constitutional law experts, argued: “Proposition 8 represents the first time that the California initiative process has been wielded to abolish a fundamental freedom for an unpopular minority group and to alter the Constitution so as to mandate governmental discrimination against that group. In this way, Proposition 8 attempts to breach some of the most elemental textual and structural promises of our state Constitution. It revokes a fundamental right that, in the words of the Constitution, is “inalienable.” It dismantles constitutional equality for a single group of Californians – a group that, because of its history of oppression and stigma, is entitled to the highest level of constitutional protection against discrimination.”

Another brief authored by Professor Karl Manheim, one of the foremost authorities on California’s initiative process, stated: “Proposition 8 . . . improperly attempts to revise the Constitution by taking the unprecedented step of singling out a suspect class and depriving that class – and only that class – of a fundamental right.”

On January 15, 2009, 43 friend-of-the-court briefs urging the Court to invalidate Prop 8 were filed, arguing that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution, and that the rights of a minority cannot be eliminated by a simple majority vote.

Other briefs supporting the legal challenge to Prop 8 were filed on behalf of 652 current and former California legislators; dozens of bar associations, legal aid organizations; and numerous California municipal governments.

In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians. Proposition 8 eliminated this fundamental right only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group. Proposition 8 passed by a bare 52 percent on November 4.

The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this challenge on November 5, representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney. These three cases are jointly under review by the California Supreme Court.

Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.

On November 19, 2008, the California Supreme Court granted review in the legal challenges to Proposition 8, and established an expedited briefing schedule, under which briefing was completed on January 21, 2009. The California Supreme Court has stated that it may schedule oral argument as early as March 2009.

The case is Strauss et al. v. Horton et al. (

S168047).

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Lawsuits filed over rule that lets health workers deny care

Seven states and two family-planning groups yesterday asked a federal court to block a controversial new federal regulation that protects health workers who refuse to provide care that they find objectionable.

In three lawsuits filed in U.S. District Court in Connecticut, the states and groups sought an immediate court order preventing the regulation from going into effect Tuesday and a permanent decision voiding the rule.

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Google Amicus Brief Challenges Calif.’s Prop 8 PC Magazine

Google has issued its support for several cases challenging California’s Proposition 8, a ballot initiative that banned gay marriage in the state.

“Denying employees basic rights isn’t right, and it isn’t good for businesses,” Google wrote in a blog post. “We are committed to preserving fundamental rights for every one of the people who work hard to make Google a success.”

In May, the California Supreme Court struck down a state ban on gay marriage. Proposition 8, included as a ballot initiative during the November general election, reversed that decision. Since then, a number of groups and individuals have filed lawsuits, claiming Proposition 8 is unconstitutional.

See Google Amicus Brief Challenges Calif.’s Prop 8 PC Magazine

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Labor unions, churches to fight gay marriage ban in court

Labor unions and some churches announced Tuesday that they planned to file friend-of-the-court briefs in support of invalidating Proposition 8, the November ballot initiative that banned gay marriage in the state.

The California Council of Churches and other faith organizations including the Progressive Jewish Alliance representing millions of members said they will file on Thursday.

On Friday, a coalition of labor unions representing more than 2 million California workers said they planned to file their own brief. The briefs will support the lawsuits filed by gay-rights groups the day after Proposition 8 was enacted.

The California Supreme Court has agreed to take the case and could hear arguments as soon as March.

See Labor unions, churches to fight gay marriage ban in court
Los Angeles Times, CA -