California Prop 8 ruling Tuesday, May 26th

May 22, 3:55 PMInternational LGBT Issues ExaminerKelvin Lynch

Previous Next

14 comments Print Email RSS Subscribe

Subscribe

Get alerts when there is a new article from the International LGBT Issues Examiner. Read Examiner.com's terms of use.

Email Address   Include other special offers from Examiner.com Terms of Use

                  Prop 8 rally outside San Francisco City Hall

The California Supreme Court has announced it will rule on Proposition 8 this Tuesday, May 26th at 10:00 a.m. 

A website article claiming that San Francisco Mayor Gavin Newsom had asked the high court to delay the ruling turned out to be false.  Many expected the ruling yesterday, which would have coincided with the 30th anniversary of the White Night riots in San Francisco.  The riots followed former city supervisor Dan White's conviction on manslaughter charges instead of murder for killing Harvey Milk and mayor George Moscone.  The riots were depicted in the movie Milk.

"D-Day" organizers in cities across the country are prepping for what could turn out to be a celebration or a protest, depending on the outcome. "D-Day" sounds pretty ominous, so the general feeling is that the outcome will not be favorable for supporters of gay rights.

As it now stands, Proposition 8 is a consitutional amendment banning same-sex marriage in California.  The highly controversial initiative was a response to the CA Supreme Court's May 2008 ruling allowing same-sex marriages in the state. The initiative was heavily sponsored by out-of state organizations like the Mormon Church of Jesus Christ of Latter Day Saints and the National Organization for Marriage (NOM).

There are 3 questions the court must answer:

• Is Proposition 8 an invalid revision to the state Constitution, rather than an amendment?
• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
• If Proposition 8 is a constitutional amendment, how does it affect marriages of same-sex couples performed before it's adoption?

Following Prop 8 hearings in March, some legal scholars and political pundits anticipated the court would uphold Prop 8 as an amendment effective November 4th, 2008, but allow the marriages performed between June and November to remain valid.  However, the view that the CA Supreme Court must base its ruling on the Prop 8-amended Constitution is simply not accurate.  At its very heart, the issue is whether or not Prop 8 is a valid amendment at all. 

There is speculation, even from conservatives, that Prop 8 could very well be struck down as a clear revision of a fundamental right.  Patrick Edaburn, writing for The Moderate Voice, points out that it was the CA Supreme Court that granted the right of same-sex couples to marry.  It would be highly unconventional for a court of last appeal to take away a substantive right it previously granted.  It would also make the CA Supreme court largely irrelevant.

Edaburn predicts the decision will hinge on the swing votes of three Justices (possibly just one), but he isn't naming names. He talks about "outside influences", like personal feelings and political motivations, that could prompt the court to strike Prop 8.  He draws a parallel to the civil rights cases facing the US Supreme Court in the 1950's and 60's, saying the Justices followed their own consciences and carefully weighed the social consequences of their decisions. He says the Justices know that upholding Prop 8 would simply mean a new ballot initiative every 2 years.  But striking Prop 8 would put an end to the matter, because it would then take a legislative act to put another initiative on the ballot, which is highly unlikely in California. 

It's important to note that since the March hearings, same-sex marriage has become legal in Vermont, Maine, Iowa, and New Hampshire, and a bill to make gay marriage legal in New York has been introduced by Governor David Paterson.  The trend may have a strong influence on the CA Supreme Court's decision.

To find out where "D-Day" rallies are taking place in your community, go to Day of Decison. 

Also, don't forget to follow my friend and fellow Examiner Sarah Estrella's excellent coverage of Marriage Equality.

Scroll down to leave comments.