Tomorrow from 9:00 AM until noon, the California State Supreme Court will hear oral arguments in three cases (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078) challenging the constitutionality of Proposition 8, a statewide ballot initiative passed by California voters in November, 2008.
In the cases before the court, the court has issued an order listing the following three issues to be briefed and argued:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not constitutional, what is its effect if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
The three cases before the court were filed directly in the California Supreme Court on November 5, 2008, the day following the voters' approval of Proposition 8 at the November 4 election.
California's Supreme Court Justices (Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan) are in an unusual and precarious place. They are the folk who declared that denying same sex couples the right to marry deprived them of basic constitutional rights. This is the body that opened the flood gates of same sex marriages during which 18,000 couples legally married before voters closed those flood gates. These same people must now decide whether or not to keep their jobs by caving into the bullying of Prop 8 supporters or to risk losing their jobs and stand by their original decision. You see, the supporters of Prop 8 have stated that should the Supreme Court maintain their original decision that to deny same sex couples the right to marry is to deny them equal constitutional rights there will be immediate recall proceedings. California State Supreme Court Justices are elected. They are subject to the whim of popular opinion. If these justices cave in to the pressure of the Prop 8 supporters, California will become an even more scary place to live than it has become during its budgetary 'Perils of Pauline' soap opera because we will know for certain that the law of the land will be in the hands of thugs. That is truly terrifying. These men and women who wear the robes of justice must decide between career and constitution. Let us hope they have courage sufficient for the task so their choice can affirm equal rights for everyone.