California Supremes Don't Stay Prop 8

Today, the California Supreme Court rejected requests by The City of San Francisco and the ACLU for the Court to issue a stay which would temporarily prohibit the State of California from implementing Proposition 8. Proposition 8 will go into effect for now.

However, the court has accepted the cases, and has asked the parties to brief the following issues:

• Is Proposition 8 invalid because it is a a constitutional revision rather than an amendment?
• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
  
• If Proposition 8 is constitutional, what effect, if any, does it have on the marriages of same-sex couples who were married before Proposition 8 was adopted?

The court didn't give much time for the parties to respond. The defendants in the cases, Mark Horton, Registrar of Vital Statistics, and Linette Scott, Deputy Director of Health Information & Strategic Planning of the California Department of Public Health, must file their responses on or before December 19. Both are represented by the state attorney general's office. After that, the plaintiffs have until January 5th to respond. Applications to file an amicus curiae brief (a brief by someone who is not a party to the suit) will be accepted until January 15th, and responses to amicus briefs will be accepted until January 21. We don't yet know when oral arguments will scheduled.

The court allowed the Official Proponents of Proposition 8 to intervene as parties to the case, but rejected a similar request by the Campaign for California Families.

Interestingly, Justice Moreno joined the court order, except that he says Proposition 8 should be stayed while case is heard. Hopefully, this means he's on our side.

Justice Kennard also joined the order, except she said that the court should not consider what effect Prop 8 will have on pre-Prop 8 same-sex marriages. She says that issue should be remanded for trial in a lower court. Since that issue will most likely require fact finding, she's probably right to take this position. Appellate courts do not normally try issues of fact.

So there it is folks: Prop 8 will go into effect for now, and we have to wait several excruciating months before we know whether it will be overturned. Hopefully the court makes this quick (and hopefully justice prevails).

UPDATE: Kip Esquire is saying that the court will hear the case sometime in March.

Source:
[California Appellate Courts Official Site]