State Supreme Court to hear arguments on Prop. 8 Tuesday

Brown, Attorney General Harris believe Prop. 8 is unconstitutional

The California Supreme Court -- with two new members seated in the past year -- is set to hear arguments in San Francisco Tuesday on a key issue in the state's legal battle over same-sex marriage.

The question before the panel is whether state law gives Proposition 8's sponsors the right to appeal a federal trial court ruling that found the voter-approved ban on gay marriage to be unconstitutional.

The initiative's sponsors and their committee, Protect Marriage, are seeking to appeal that ruling to the 9th U.S. Circuit Court of Appeals.

But in January, the appeals court sent the case to the California Supreme Court for an advisory opinion on whether state law allows an initiative's sponsors to pursue an appeal when the state's governor and attorney general refuse to do so.

Gov. Jerry Brown and Attorney General Kamala Harris have both said they won't defend Proposition 8 because they believe it is unconstitutional.

The 9th Circuit said that federal law, as set forth by the U.S. Supreme Court in an Arizona case in 1997, doesn't appear to allow appeals by initiative sponsors in such circumstances.

Therefore, the court said, "it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure."

After hearing Tuesday's arguments, the seven-member state high court will have 90 days to issue its advisory opinion on whether the proponents have the legal right, or standing, to appeal. The case will then go back to the federal appeals court.

The state court's two newest members are Chief Justice Tani Cantil-Sakauye, a former state appeals court judge named by Gov. Arnold Schwarzenegger to replace retired Chief Justice Ronald George, and Justice Goodwin Liu, a University of California at Berkeley constitutional law professor nominated by Brown to replace Justice Carlos Moreno.

Cantil-Sakauye, 51, viewed as a moderate, and Liu, 40, considered a liberal, are the two youngest judges on the court, whose other members are in their 60s and 70s. Cantil-Sakauye took office on Jan. 3 and Liu was sworn in to his post by Brown on Thursday, following his confirmation by a state commission on Wednesday.

Both their predecessors played an important role in the court's previous three rulings on same-marriage marriage.

George, as the leader of the court, wrote the majority decision in each of those three cases.

The first was a unanimous decision in 2004 saying that San Francisco didn't have a unilateral right to allow gay marriages without the backing of a state appeals court. Next, after a new set of cases worked its way through the state court system, George wrote a 4-3 ruling in May 2008 that said the state Constitution provided a right to same-sex marriage.

Finally, in 2009, George wrote a 6-1 decision that said state voters had the right to amend the California Constitution to ban same-sex marriage through Proposition 8, enacted in November 2008.

The lone dissenter who voted to overturn Proposition 8 in 2009 was Moreno, Liu's predecessor. Moreno was then, as Liu is now, the only member of the court appointed by a Democrat.

The battle over same-sex marriage then switched to federal court, in a new lawsuit in which a lesbian couple from Berkeley and a gay couple from Burbank argued that Proposition 8 violated their federal, as opposed to state, constitutional rights.

After a non-jury trial, now-retired U.S. District Judge Vaughn Walker ruled in San Francisco last year that the initiative violated the federal rights of due process and equal protection. His decision has been put on hold during the appeal.

In contrast to its 2008 ruling, the case now before the California Supreme Court concerns a procedural issue and not the constitutionality of same-sex marriage.

The Proposition 8 sponsors argue that they should be allowed to step in to appeal to protect the fundamental right of Californians to enact initiatives.

"If we don't have standing, who does? It's an absurd result," Protect Marriage attorney Andrew Pugno said last week.

The same-sex couples, joined by the city of San Francisco, contend that the state Constitution gives only the governor and the attorney general, and not "an unelected group of private officials," the authority to decide when and how to defend state laws.

The elected officers have the authority to determine that "some laws are so misguided, discriminatory and harmful that they do not warrant a defense in court," the couples' attorneys wrote in a court filing.

Margaret Russell, a constitutional law professor at Santa Clara University, said last week the California court's ruling will be advisory and the 9th Circuit will make the final decision on whether California's strong tradition of voter initiatives creates a different set of facts from the Arizona case ruled on by the U.S. Supreme Court.

"They're asking the California court not to decide, but to inform them," Russell said.

But "the California Supreme Court's decision will be heavily influential," she said.

If the 9th Circuit concludes that the Proposition 8 sponsors have standing, it will go ahead and decide their appeal of Walker's ruling. If not, Walker's decision would be left in place. But a new round of federal court hearings would probably be needed to determine whether Walker's decision would apply statewide or only in Alameda and Los Angeles counties, the home counties of the two plaintiff couples, Russell said.

Another law professor, Marc Spindelman of Ohio State University, said that while the issues before the California Supreme Court are procedural, "they are no sideshow."

"There's nothing trifling about them," he said.

"What the court has before it are questions about how the state's direct democracy rules should be understood to synch with its constitutionally-based ideas of representative government," Spindelman said.

"Who speaks for the people and the state - and when?" he asked.

Julia Cheever, Bay City News


Posted by Citizen Paine, a resident of Danville
on Sep 6, 2011 at 7:53 am

The last gasp of the drawkcab srekniht.

If the meager defense they put on at trial is any indication -- and it is -- they are secretly hoping they'll lose to avoid further embarrassment.

I don't recall anybody ever getting to vote on My fundamental constitutional rights.

Posted by guynextdoor, a resident of Danville
on Sep 6, 2011 at 7:43 pm

Fundamentally, constitutionally, morally, ethically, civilly marriage is a sacred promise/agreement/union/committment/contract between one man and one woman for better or for worse, in sickness and in health to (mutually) love, honor and obey until death do they part. The last word!

Posted by Observer, a resident of Danville
on Sep 6, 2011 at 10:21 pm

Thank goodness homosexuals cannot breed, otherwise this country would be in real trouble. If some nutty homosexuals want to marry, let them go for it, it means absolutely nothing. Realize it is the end of the line for the legacy of their DNA in this universe. Adios mi pequenas mariposas!

Posted by Sharon, a resident of Danville
on Sep 6, 2011 at 10:40 pm

I'm SO glad I am hetero! I can meet some guy, kinda like him, decide to drive to Vegas and marry him, and divorce him a month later - that is my constitutional right, dammit! In fact, I can do that again and again and again....and again. My friends who are not lucky enough to be hetero, who have been in a committed relationship for 17 years - they would certainly threaten the very fabric of the universe if they were allowed to marry! And that they adopted two special needs foster children and are actually raising them together - I'm aghast!

Come on people - wake up and get over your homophobia. @Guy - "obey"? Seriously? Mrs. Guynextdoor must be one lucky are a real charmer.

Posted by cardinal, a resident of Diablo
on Sep 6, 2011 at 10:55 pm

Guy -- all that needs to be said about your absurdly simplistic and retrograde comment is that if you're used to having "the last word," then you don't know the First Thing about marriage!

Posted by Chris, a resident of Danville
on Sep 7, 2011 at 6:34 am

God created Adam and Eve, NOT Adam and Steve! There is a reason Sodom and Gomorrah got destroyed, people.

Posted by Citizen Paine, a resident of Danville
on Sep 7, 2011 at 7:44 am

I dunno, Chris -- I prefer to take what guidance there is in ancient Hebrew mythology from the New Testament.

Blessed are they who take the Sermon on the Mount seriously. I don't think you can categorically reject a whole group of fellow humankind on the basis of who they are, not what they do, and still find yourself in favor with your namesake.

To paraphrase Mr. Gandhi: I like your Jesus very much, but his followers need a lot of work.

Posted by Dave, a resident of Alamo
on Sep 7, 2011 at 10:25 am

Why is it liberals believe in the right to your day in court unless they disagree with the plaintiff?

The voters passed Prop 8 and now it's up to the courts to decide it's legality. That's the way the system works. Either support that system or work to change it.

Posted by Farmer Dave, a resident of another community
on Sep 7, 2011 at 11:16 am

Farmer Dave is a registered user.


Why is it that conservatives believe the constitution and bill of rights are sacrosanct except when they conflict with their misguided beliefs?

Many of the rights stated in the constitution are there to ensure that the majority cannot override the rights of a minority.

Posted by Mike, a resident of Danville
on Sep 7, 2011 at 2:00 pm

Like or not, gay people have been around as long as people have been here on earth. Alexander the Great, Aristotle, Socrates, Emperor Hadrian, Richard the Lionhearted, Saladin, Francis Bacon, Frederick the Great, Lord Byron, Walt Whitman, Cole Porter, Leonard Bernstein, Michelangelo, Leonardo Da Vinci, Herman Melville, Tchaikovsky, Willa Cather, John M. Keynes, Julius Caesar, Augustus Caesar, James I, Queen Anne, Marie Antoinette, Montezuma II, Peter the Great, St. Augustine, Sir Isaac Newton, William Shakespeare, Pope Benedict IX, Pope John XII, Pope Julius III, Pope Leo X, Pope Paul II, Pope Sixtus IV, Malcolm Forbes, J. Edgar Hoover, Lawrence of Arabia, Joan of Arc, Hans Christian Andersen, R.S.S. Baden-Powell…the list goes on.

Posted by Observer, a resident of Danville
on Sep 7, 2011 at 6:43 pm

@Mike, What a distinguished list, are you on the list, as well? Which one of these distinguished members on the list married his homosexual partner? Is this not the actual question, not whether a few men in history pounded some passive sissies, but whether they had a public relationship with their homosexual partner? The sex drive is indeed powerful, but that does not mean you should be proud of all actions that stem from this drive, such as your self-satisfaction.

Posted by Citizen Paine, a resident of Danville
on Sep 8, 2011 at 7:01 am

Observer -- where have you been for the last fifty years? You write as if you believe there's any shame in being gay ("are you on that list"), and you try to belittle others like a bully in the schoolyard ("passive sissies").

These statements expose you as a pathetic relic. They also provide a reminder of why the gay rights movement was, and is, important -- so thanks, at least for that.

Posted by Observer, a resident of Danville
on Sep 11, 2011 at 10:31 am

@ Citizen Paine --- Yes, I do believe that you should have shame. Homosexuals and other perverts have mistakenly shed their shame, and now cloak themselves in the new age misbelief that there is actual pride in being "mixed-up" sexually, pretending to play the peverted game of legitimate sexual disorientation.

That is your business, but it is fruitless to convince me otherwise. As you say in your world, we must open and celebrate diversity. Therefore learn to celebrate and appreciate my diverse thought, as well. Thank you.

Posted by Citizen Paine, a resident of Danville
on Sep 11, 2011 at 12:43 pm

So let's see: I should tolerate -- yea, even celebrate -- your intolerance? Is that really it?? Verily?

While I celebrate the fact that you are free to live Your life according to your beliefs (however retrograde and intolerant they may be -- I Don't Care), my tolerance stops well short of tacitly encouraging you to impose your beliefs on others, and curtail their access to opportunities that You enjoy. Your beliefs are Your private business -- but when they are misused to hurt other people, well, then they're my business, too.

The desire to withhold the full fruits of life in America from others, simply because they are they are, and love whom they love, is base, mean-spirited and ultimately unAmerican. The sexuality of a gay person is as innate to them as yours is to you.

Using epithets like "pervert" in an attempt to drive folks back into abandoned closets is pathetic. That space is available to you, however, should you need to cloister yourself from the ways of the actual world.

Indeed, Ob, there IS a place for shame, and you're in it.

Posted by Observer, a resident of Danville
on Sep 11, 2011 at 1:22 pm

@ Citizen Paine --- You are free to repeat, as many times as you wish, any words and thoughts in your head regarding homosexuality, well past the point of self-indoctrination.

However, I might add, your latest posting does not demonstrate the tolerance nor the acceptance of diversity that homosexuals preach.

Posted by Citizen Paine, a resident of Danville
on Sep 11, 2011 at 3:42 pm

Then you missed the point. It's there, I assure you.

One Mo' Time: You've maybe heard the phrase: "Your right to swing your arms ends at my nose?" Well, similarly, I am completely tolerant of your swinging, knuckle-dragging beliefs (as diversity suggests), unless you impose them on Other People's Business. I don't care how you feel about gays or anyone else -- unless you use those beliefs to exclude them from rights you enjoy. You are utterly unaffected if two other people marry, yet you want them excluded from that right.

There's a word for that, but it's not "diversity."

The American Dream is not friendly to status offenses -- they offend our sense of fair-play and opportunity. Yet sometimes groups have to fight for recognition as equal participants, as here. It's a hard fight, but it's also worth fighting, and winning. Prop 8 is rasping its last breaths, and good riddance.

Posted by Observer, a resident of Danville
on Sep 11, 2011 at 6:09 pm

@ Citizen Paine --- There is absolutely no discrimation with the current marriage law in California, all homosexuals in California have the right to marry, certainly if they choose to abide by the definition of marriage.

Homosexuals though seem to have difficulty with defined term of marriage. Thus homosexuals are interested in changing the definition of marriage to include two people of identical gender.

Try all you like, spermatozoa and feces do not mix very well, and never will they create life. Homosexuality is thus a dead-end (pardon the poor pun).

If you want to walk down the aisle with your boyfriend that is your business. I am not stopping you, nor is the state of California.

Posted by Citizen Paine, a resident of Danville
on Sep 11, 2011 at 7:49 pm

You know what's most laughably ironic? It's the adolescent fixation of Prop 8ers on the mechanics of sex acts -- acts that are already legal, and widely performed by consenting, card-carrying adults, gays and breeders alike.

Bulletin to Ob: marriage is Not about those mechanics. Your comments suggest that you have no idea what it Does entail. You have squandered the rights you would deny to others.

If you would like to test your legal opinion, try sending your gay nephew and His BF to apply for a CA marriage license. They are likely to hear: "Not yet."

Posted by Observer, a resident of Danville
on Sep 11, 2011 at 8:21 pm

@ Citizen Paine --- Homosexual sodomy was formally legalized in the United States in 2003 by the U.S. Supreme Court, Lawrence vs. Texas (6-3). You are free to explore your sexual perversions, but not everyone has to agree with you lifestyle, most don't.

P.S. I do not have a homosexual nephew, both of them have beautiful, gorgeous knock-out girlfriends, leaving no room for doubt. Besides, homosexuality would not be allowed in our family or our extended family. That is just the way it is, but you are certainly free to live in your manner, disgusting as it may be in my mind.

Posted by Citizen Paine, a resident of Danville
on Sep 11, 2011 at 8:57 pm

"Not allowed" ... oh my, that's rich. C'mon, you're just baiting me now, aren't you? Please?

Let's try something: can you conceive of a world in which you were "not allowed" to acknowledge your own sexuality, where you were told by folks whom you love and should be able to trust that there was something fundamentally wrong or evil in your biological make-up? Can you imagine the fear, frustration, self-loathing and misery you would experience?

Now, can you conceive of being so cruel that you would intentionally visit such misery on another human being, let along someone you love?

Ob, I sincerely hope that you don't have anyone who's gay in your life -- not for your sake, but for theirs. But know that if you don't, it's an accident of genetics and not Any thing to do with what you will "allow" or what someone chooses as a "lifestyle."

Tell me, when did you "choose" your heterosexuality? If you didn't (and you didn't), why can't you accept that others didn't choose it either -- they're just different from you?

Posted by Observer, a resident of Danville
on Sep 11, 2011 at 10:19 pm

Citizen Paine claims that people who broach the subject of the "homosexual act", that is the mixture of spermatozoa and feces must be adolescently fixated heterosexuals. However, after watching an episode of Monk this evening, I figured it out. Homosexuals just do not like to be reminded of their disgusting act, so they claim that the person doing the reminding must be fixated, transferring their personal sexual guilt to the speaker as a diversion, thereby avoiding to think graphically for a sustained period of time about their repulsive act. Case closed. Thanks Monk!

Posted by Citizen Paine, a resident of Danville
on Sep 12, 2011 at 6:53 am

Actually Ob, in a gesture of public celebration, an occasional feature of that particular act has been commemorated, and forever linked with the name of a prominent Presidential candidate.

Google: santorum

Of course, locally folks call it "observer."

Posted by Sharon, a resident of Danville
on Sep 12, 2011 at 8:11 pm

CP - you know I adore you....but you are casting your pearls before swine here. Swine distracted with a fixation on an act they deem "disgusting" and "repulsive" and yet seem to revel in it nontheless.

Posted by Citizen Paine, a resident of Danville
on Sep 13, 2011 at 12:17 pm

But it was worth it -- just to retain your admiration, my dear. ;-)

Posted by Sharon, a resident of Danville
on Sep 13, 2011 at 7:18 pm

...and I thank you for the entertainment, CP ;o)

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