The California Supreme Court agreed Wednesday to review whether Proposition 8, the constitutional ban on same-sex marriage approved by 52 percent of voters two weeks ago, can stand.
The court refused to delay the ban's effect while it considers whether the initiative was a revision of, rather than an amendment to, the state constitution.
Proponents of Proposition 8 say it was an amendment — a narrow, specific change requiring only petition signatures to qualify for the ballot. Its opponents say it was a revision — a more substantial change to the constitution as a whole, which should have required two-thirds votes of both Legislative chambers before being put to voters. Both sides had urged the court to review the matter.
The court also agreed to review whether Proposition 8 violates the separation-of-powers doctrine under the California Constitution. One of the legal challenges filed since the election contends it does so by using the ballot-initiative process to remove or do an end run around the judiciary in determining what is and isn't a fundamental liberty right and who is and isn't protected by the constitution's guarantee of equal protection.
And the court agreed to consider, if it finds Proposition 8 should stand, what effect that will have on the estimated 18,000 same-sex couples that married in California from May — when this same court ruled that state laws against same-sex marriage were unconstitutional — to the ballot measure's passage Nov. 4.
The court set out a fast-tracked briefing schedule: All papers will be filed by Jan. 21 and oral arguments could be held as early as March.
Six justices — Chief Justice Ronald George, Justice Marvin Baxter, Justice Kathryn Werdegar, Justice Ming Chin, Justice Carlos Moreno, and Justice Carol Corrigan — signed the court's order Wednesday, although Moreno indicated that he would have chosen to stay the effects of Proposition 8 until the case is resolved. Justice Joyce Kennard would have declined to take the case, but only until someone files a lawsuit specifically questioning what the effect of the proposition would be, if any, on already-married couples.
Randy Thomasson, president of Campaign for Children and Families, issued a statement saying it's "unfortunate that the judges are giving time to the mushy, subjective arguments of homosexual activists who reject the clear reading of the constitution and the clear reading of Proposition 8. If the court disobeys the constitution by voiding Prop. 8, it will ignite a voter revolt. It will also threaten the validity of all future constitutional amendments."
But Yes on 8 Chairman Ron Prentice issued a statement Wednesday decrying "some chatter from outside groups who claim to represent the Yes on 8 campaign" and noting his "is the only committee that passed Prop. 8. Some other groups are attempting to use the passage of Prop. 8 for fundraising and publicity purposes."
Prentice said he's "confident that the Court will do the right thing and uphold our right to enact the measure by initiative. By encouraging the Court to hear and decide these cases now, we are hoping to avoid years of costly litigation over Prop. 8 as the cases would normally wind through the court system."
Three lawsuits challenging Proposition 8's validity were filed Nov. 5: one by the National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal on behalf of six individuals and Equality California; a second by the cities of San Francisco and Los Angeles and Santa Clara County, since joined by other local governments including Alameda and San Mateo counties; and a third filed by a private attorney in Los Angeles. Another three lawsuits have been filed since then: one by minority groups, one by religious organizations and one by women's rights organizations, all arguing Proposition 8 threatens basic equal protection rights for all.