Obscanity: You'll know it when you see it

CA Supreme Court, Order to Show Cause, etc.. (PDF)

Issued today, November 19.

Text:

The motion for judicial notice filed in S168047 by petitioners on November 5, 2008, is GRANTED. The requests for a stay of Proposition 8 filed by petitioners in S168047 and in S168066 are DENIED. Respondent Secretary of State Bowen’s request to be dismissed as a respondent in S168066 is GRANTED. (Kevelin v. Jordan (1964) 62 Cal.2d 82.) The motions to intervene in S168047, S168066, and S168078, filed on November 17, 2008, by Proposition 8 Official Proponents et al. are GRANTED. The motions to intervene in S168047, S168066, and S168078, filed on November 10, 2008, by Campaign for California Families, are DENIED.

The State of California, the Attorney General, the State Registrar of Vital Statistics, and the Deputy Director of Health Information and Strategic Planning of the California Department of Public Health are ORDERED TO SHOW CAUSE before this court, when the above entitled matters are called on calendar, why the relief sought by petitioners should not be granted. The issues to be briefed and argued in these matters are as follows:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.)

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The return is to be filed by respondents, and a brief may be filed by intervenors, in the San Francisco Office of the Supreme Court on or before Friday, December 19, 2008. A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Monday, January 5, 2009. Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, January 15, 2009. Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Wednesday, January 21, 2009.

Moreno, J. joins this order except that he would grant the requests to stay the operation of Proposition 8 pending this court’s resolution of these matters.

Kennard, J. would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.

Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

Not sure what to think about the fact that Kennard, who JOINED the majority in the marriage cases, now seems to think that they should let Prop 8 stand. That’s upsetting and a little disturbing considering the precedent this would set – if Prop 8 stands, then any minority group could have their rights abridged by popular vote, particularly those groups not expressly protected by the US Constitution – gender being one of them. Interesting, huh? Don’t think it would happen? Don’t forget that this is the same state that literally responded to an anti-discrimination bill by voting by an overwhelming majority to allow racial discrimination in housing.

As somebody said on another blog (can’t remember where): You might not be gay, but you might be next.

At least the court is willing to listen and consider. That’s nice to know, considering the fact that this so-called “amendment” literally strips the court of its power in every respect. If you don’t believe that, consider that the Yes on 8 people are already starting their extortionist tactics, threatening to remove any judge who votes against them.

Consider that Brown v. Board of Education, Loving v. Virginia, and all of the other major civil rights court decisions were unpopular and contrary to the majority’s opinion. What if those decisions had been subject to the whim of the popular vote? We would still have segregation and interracial-marriage bans today.

The purpose of the judiciary is to protect the minority from the tyranny of the majority. And this “amendment” removes their power to do that, and completely undermines the institution of equal protection under the law by saying that the Constitution only affords equal protection to those belonging to and approved by the majority. That is not what the Constitution is for – and I guarantee you that if Prop 8 stands, the “Yes” folks will not be sated merely by dissolving the rights of the LGBT community. They will go after you next.

I hope the Court thinks about this long and hard before they issue their opinion.

[Edit: Now that I look, Justice Kennard wrote in her concurrence to the original marriage cases:

In holding today that the right to marry guaranteed by the state Constitution may not be withheld from anyone on the ground of sexual orientation, this court discharges its gravest and most important responsibility under our constitutional form of government. There is a reason why the words “Equal Justice Under Law” are inscribed above the entrance to the courthouse of the United States Supreme Court. Both the federal and the state Constitutions guarantee to all the “equal protection of the laws” (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7), and it is the particular responsibility of the judiciary to enforce those guarantees. The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection. (See Davis v. Passman (1979) 442 U.S. 228, 241 [describing the judiciary as “the primary means” for enforcement of constitutional rights]; Bixby v. Pierno (1971) 4 Cal.3d 130, 141 [stating that, under our constitutional system of checks and balances, “probably the most fundamental [protection] lies in the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority”].)

Here, we decide only the scope of the equal protection guarantee under the state Constitution, which operates independently of the federal Constitution. (See Cal. Const., art I, § 24 [“Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution”].) Absent a compelling justification, our state government may not deny a right as fundamental as marriage to any segment of society. Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government. Indeed, this court’s decision in Lockyer made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution’s equal protection guarantee. (Lockyer, supra, 33 Cal.4th at pp. 1068-1069.) The court today discharges its constitutional obligation by resolving that issue.

So I am seriously confused as to where she stands now since she suggested denying the petitions. Is she saying she doesn’t think the Court should retain its original jurisdiction, but should rather let the case go through the lower courts first? Is she saying Prop 8 should stand? That seems SO inconsistent with her prior statements.]

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