With the passage of Proposition 8 on Nov. 4, the California constitution now defines marriage as “between a man and a woman,” excluding and thereby banning same-sex marriages. The proposition’s victory of 52 percent sparked protests statewide as well as nationwide. Now it seems that protesters have moved off the streets and into the courthouses.
On Nov. 19, the California Supreme Court agreed to listen to lawsuits charging that Proposition 8 is unconstitutional. Six of the seven justices agreed to hear the cases and required the parties involved to answer several questions pertaining to the proposition.
Whether Proposition 8 qualifies as a revision or an amendment to the California constitution, whether it violates the constitution’s separation-of-powers doctrine by confining judges’ authority to protect gay couples, and if constitutional, whether it may nullify the some 18,000 gay marriages that occurred in California between June 16 and Nov. 4, are all questions facing the court.
The court that will decide the fate of Proposition 8 is the same court that legalized gay marriage in California in May this year. The first hearing is expected to begin around March 2009. With a ruling due 90 days later, the matter could be resolved as early as June next year. In the meantime, Proposition 8 will remain in effect.
Erwin Chemerinsky, dean of the UC Irvine School of Law, said, “I think that it is difficult to predict what the California Supreme Court will do with the challenges to Proposition 8 because they raise legal questions that have rarely been addressed by the courts. What is an amendment as opposed to a revision just hasn’t been the subject of many opinions.”
As vehement as Proposition 8 supporters are, some are still attempting to distance themselves from the suggestion that any justice who votes against Proposition 8 should be voted out of office in 2010, when three of the seven ruling justices will be vulnerable on the ballot.
This is not the first time voters have attempted to coerce their California statesmen. In 1986, three justices, including Chief Justice Rose E. Bird, were voted off the bench after they had voted in opposition to capital punishment.
Proposition 8 backers are saying that history is on their side. Andrew Pugno, a lawyer representing supporters of the proposition, referenced past state bans on the use of race, sex or ethnicity in college admissions and property tax caps.
In an article for The New York Times, Pugno said, “Whenever an amendment or an initiative has been challenged, almost always the court rejects that and upholds the people’s initiative power. These major policy changes that the court has recognized are fine.”
On the other hand, Jennifer C. Pizer, a lawyer with Lambda Legal, a national organization working to achieve full civil rights for lesbians, gay men, bisexuals, and transgender people said, “[Proposition 8] essentially nullifies the equal protection guarantee [of the Constitution].”
Pizer also said that the proposition sets a dangerous precedent, something that has been cited by several minority groups who asked for relief from the court.
“In California, we cherish the right of the initiative,” Pizer stressed. “Yet if it’s misconstrued as the power to so easily deprive vulnerable minority groups of basic Constitutional rights, then we’ve lost the check and balances.”
Opinion around UC Irvine is varied in more than one way on the issue that the courts are taking on Proposition 8. Jason Sarkozi, a third-year mechanical engineering major, believes the courts should refrain from reinterpreting the law.
“Traditional marriage has been decided by the people in two separate elections … the judges would be going against the will of the people and that undermines people’s rights as individuals,” Sarkozi said. “There is nothing unconstitutional in saying that a marriage is between a man and a woman. There is no discrimination, and experts on discrimination would agree.”
Jason Weingarten, a fourth-year history major, had mixed sentiments.
“It doesn’t affect me if gays want to get married, so if it makes them happy then I’m all for it. We live in a society with so many problems: war, disease, etc., and we’re so concerned with gay people getting married? Why?” Weingarten asked. “That said, I don’t think the courts should be deciding this. [Proposition 8] was sent to the voters to be decided … wait until next time.”
The Lesbian, Gay, Bisexual, Transgender Center on campus could not be reached for comment.
While the matter of gay marriage is a stressful topic for both supporters and opponents alike in California the justices that have received threats allegedly endangering their re-election will also be concerned about the outcome of the court’s decision.