| The Supreme Court wasted no time in issuing its Order. Not surprisingly, the Court agreed to hear the Prop 8 cases. The Respondents and Intervenors must file their brief on the merits by December 19, 2008. The Petitioners' Reply brief is due on January 5, 2009. Any applications to file amicus briefs are due January 15, 2009, and the replies to amicus briefs are due on January 21, 2009. A hearing date has not yet been set, but I predict it will not occur until March. One early indicator of the way the Supreme Court sees the issues in any given case is to look at what questions it certifies for review. Here, the Court certified three 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 is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
The Court allowed the Official Proponents of Proposition 8 to intervene in the litigation. This means that they can file a Respondent's Brief along with the Attorney General's office. The Court denied a similar request filed by the Campaign for California Families. As I predicted it would do, the Court denied the Petitioners' motion to stay the enforcement of Proposition 8 pending the outcome of the case. An interesting side note, however, is that Justice Moreno joined the Order except that he would have granted the motion for stay. This is an encouraging sign that Justice Moreno believes that there is a reasonable likelihood that Prop 8 will be declared invalid. Way to go Justice Moreno! Another interesting side note - Justice Kennard did not join the Order. She stated that she would deny the Petition, but she would allow another Petition to be filed that raised only the third question - What effect Proposition 8 has on the marriages performed before the adoption of Proposition 8. What does this mean? Well, it could mean that Justice Kennard does not believe that Proposition 8 is unconstitutional. On the other hand, it could mean that she simply thinks the case should originate in the Superior Court before making its way to the Supreme Court. Justice Kennard was one of the four Justices who voted in favor of marriage equality. In fact, she was one of the minority of Justices who thought that the marriages that were performed in 2004 should not have been invalidated pending the Court's decision in In re: Marriage Cases. Justice Kennard wrote her own concurring opinion in the Marriage Cases in which she stated: Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law or resolution by the judicial branch of state government.
Given her stand on this issue, it is my guess that Justice Kennard believes that Proposition 8 is not constitutional. I must admit, though, that her refusal to join the Court's Order today perplexes me. |
