No Borders and Binaries

A loud cheer was heard in the LGBT community today when the California Supreme Court accepted three lawsuits against Prop. 8.

The last time Justice George heard such a cheer from the LGBT community was when his court declared same-sex marriage ban unconstitutional on May 15, 2008.

“I think there are times when doing the right thing means not playing it safe.”

Justice George said it had been one of the most difficult cases of his life. Maybe he spoke prematurely as this one seems to much more crucial. Lets hope he does not play it safe — he is up for retention in 2010 and no doubt the Yes on 8 would launch a recall effort for this Republican-appointee and others who vote in favor of civil rights for LGBT couples.

[Advice for the premature recall effort: 6 of the 7 judges on the Court were appointed by Republicans, so recall away. We would get more liberal judges on the Court who would definitely be more pro-gay].

The Supreme Court has set an expedited schedule for the ruling that can be access here.

The Court is asking for briefs on the following questions:

(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 unconstitutional, what should happen to the same-sex marriages performed before Prop. 8 took effect?

Justice Moreno wanted an immediate stay on Prop 8 - He is the more liberal wing of the court and no prices for guessing which way he will vote. Justice Kennard wanted a separate motion filed for the right-wingers challenging the existing 18000 marriages and refused to sign on the motion.

I don’t know about (1), but (2) and (3) I can predict.

When the Supreme Court threw out the ban on gay marriage earlier in the year, the court also ruled that discrimination against gays and lesbians would be held under ’strict scrutiny’ exactly like discrimination based on race or sex. Prop. 8 tells the Court in no unclear terms that the majority can decide what particular groups can be afforded ‘equal protection of the laws’ under the California Constitution and my pro-gay bias aside, I have LITTLE doubt that the Supreme Court will declare the measure as a gross violation of ’separation of powers.’ GOODBYE PROP. 8

I doubt the Court will come to (3) but since the measure is not written as retroactive, it does not apply retroactively. Ex-post facto. The same-sex marriages performed would still be recognized by the state of California.

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