I just confirmed that The Supreme Court set oral argument in the lawsuits challenging Prop 8 for March 5th.

State law requires that the Court issue a written opinion within 90 days of oral argument, so we will have an answer by June 5th.

Fingers crossed!

As Robert noted last week, the Yes on 8 camp filed a lawsuit to hide the names of those people who contributed to the Yes on 8 campaign.

Sweet Melissa reports that Judge Morrison England has set this matter for hearing on January 26th at 10:00 a.m in Courtroom #7 on the 14th floor of the Federal Building in Sacramento.

On the hypocrisy scale of 1-10, Yes on 8 's lawsuit is a 385. It's a laugh-out-loud, blow-coffee-out-your-nose, insult to anyone who paid attention to the deceptive and threatening campaign that it ran.  Take a short walk down memory lane. Remember back in October when the Yes on 8 camp sent certified letters to companies that contributed to Equality California? Remember what they said:

We respectfully request that [Company Name] withdraw its support of Equality California. . . . Were you to elect not to donate [to Yes on 8] comparably, it would be a clear indication that you are in opposition to traditional marriage. . . . The names of any companies that choose not to donate in like manner to Protectmarriage.com but have given to Equality California will be published. It is only fair for Proposition 8 supporters to know which companies and organizations oppose traditional marriage.

They're right. It is only fair for people to know.

Hopefully someone can make it to the hearing on January 26th and report back.

All parties to the Prop 8 challenges have now filed their briefs with the Supreme Court.  My exhausted and smoking printer (not to mention the trees missing from our forests) can attest to their volume.  

Later this month, the Court will hear from interested people who are not parties to the litigation (called amicus curie).  This likely will be an avalanche of paper.  In the Marriage Cases, over __ groups filed amicus briefs.

In the coming week or so, I am going to write a multi-part legally-wonkish series going over the briefs in detail.  Those with insomnia may find it to be the perfect cure.  lete.  This, of course, means that I need to tackle that big pile of paper in front of me.  So, I better get to it.    

As previously reported, Jerry Brown surprised many when, in his official capacity as Attorney General, he answered the lawsuits challenging challenges by agreeing that Prop 8 should be overturned.

Not only did Jerry Brown agree with those on the side of equality, but he may have fundamentally altered the playing field.

But first, some background.  Two basic theories were advanced to overturn Prop 8.  First is the amend/revise argument.  Prop 8 “revises” the constitution because it fundamentally changes __.  This argument has been discussed thoroughly her, her, and her, for instance.  Second is the Seperation of Powers argument.  This argument ___.  Following the framework of the arguments made, the Supreme Court asked the parties to brief these two issues (and a third issue regarding what happens to the existing marriages if the Court finds Prop 8 is

In his response, Jerry Brown argues that  

In accepting the lawsuits challenging Prop 8 for review, the Supreme Court certified two questions related to the constitutionality of Prop 8:

(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?

The Court, therefore, wants these two issues discussed separately.

The legal analysis of the first question has been discussed at length (for example: here, here, and here.) In the comments to my post yesterday, MikeD asked about the second argument. He asked if the seperation of powers argument is different from the amendment/revision argument. Here's my take on answering his question:

The root of the separation of powers doctrine is Article III, Sec. 3 of the California Constitution, which states:

The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.

While not entirely clear in the Constitution, the Supreme Court has held that the initiative power is part of the legislative branch.  Applying the seperation of powers doctrine, then, the voters exercising their legislative power through an initiative cannot encroach upon the power of the judiciary to excercise its power.

In an speech delivered in 2006, Chief Justice Ronald George described the seperation of powers doctrine:

In the case of the California judiciary, the governor is given the power to appoint judges, and the legislature, of course, has the power to control financial appropriations for new policy initiatives for support of the courts. The judiciary, on the other hand, has the important constitutional responsibility to protect the rights of all of our citizens against any unconstitutional actions by the legislative or executive branches.

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.

As Shum-and-Mike wrote yesterday, several right-wingers have been rumbling about recalling any California Supreme Court Justice who votes to overturn Prop 8. For example, right-wing nut Jon Fleischman said:

If the court overturns 8, I think you will be able to count the days before a very organized and well-funded recall of the justices voting to do that will begin. Given the passion on this issue, and the financial resources available, a recall of these justices would be on the ballot lickety-split, and then the justices who didn't believe in the primacy of the voters can understand what it feels like to feel their wrath. … Remember Rose Bird?

Unfortunately, he is correct.  The California Constitution (Art. II, Sec. 13-16) allows for the removal of any “state officer.”  And Supreme Court Justices are “state officers.”  (See Government Code section11005).

If a recall petition is initiated, it must be signed by registered voters equal in number to 20 percent of the last vote for the office. The last vote of a Supreme Court Justice was 5,193,000.  Consequently, about 1 million signatures would be required to recall a Supreme Court Justice.  To put this in perspective, those behind the effort to recall Gray Davis gathered 1.6 million signatures, 1.3 million of which were valid.  They would have 160 days (less than 6 months) to gather the signatures.

In addition to a recall effort, another way the right-wingers can attack our Justices is through their re-election bids.  California requires every Justice to stand for election every 12 years.  In 2010, Ronald George, Carlos Moreno, and Ming Chin stand for election.  Both George and Moreno voted for the majority opinion in In Re Marriage Cases.  Ming Chin voted with the dissent.  It will be much easier for the right-wingers to target Moreno and George in their re-election bids as opposed to a recall campaign because they would not need to file a recall petition or gather signatures.

Follow me to the flip to see why allowing for the recall of a judge violates just about every tenet of a democracy. . .

The U.S. State Department publishes a document called the Principles of Democracy.  This document is used to teach other countries how to create a strong democracy for themselves.  One section is devoted to the Judiciary.  California's law that allows for the removal of a Supreme Court Justice violates just about every one of these principles.  For example:

The power of judges to review public laws and declare them in violation of the nation's constitution serves as a fundamental check on potential government abuse of power — even if the government is elected by a popular majority. This power, however, requires that the courts be seen as independent and able to rest their decisions upon the law, not political considerations.

 
Judges in a democracy cannot be removed for minor complaints, or in response to political criticism. Instead, they can be removed only for serious crimes or infractions through the lengthy and difficult procedure of impeachment (bringing charges) and trial — either in the legislature or before a separate court panel.

 

An independent judiciary assures people that court decisions will be based on the nation's laws and constitution, not on shifting political power or the pressures of a temporary majority. Endowed with this independence, the judicial system in a democracy serves as a safeguard of the people's rights and freedoms.

 

If California is going to resort to removing judges based on the political winds of the day, we do not deserve the title “democracy.”

Disclaimer: I handle product liability cases that could come before the Courts, including DePuy Hip Implant Lawsuits.

California Attorney General Jerry Brown's office today filed briefs in response to the three lawsuits that have been filed to challenge Proposition 8. You can read the briefs in their entirety here here and here.

In short, the AG's office asks the Supreme Court to: (1) hear the lawsuits, (2) deny petitioner's request to stay Prop 8 pending the Court's decision, and (3) expedite review of the cases.

Three lawsuits have been filed with the California Supreme Court that challenge Proposition 8.  The first was brought by six couples along with Equality California.  The second was brought by two couples.  The third was brought by the City and County of San Francisco, the County of Santa Clara, and the City of Los Angeles. 

All three lawsuit are variations on the same theme: that Proposition 8 is a “revision” to the California Constitution and a valid revision must be submitted to the voters by the Legislature.  Since Proposition 8 did not originate in the Legislature, it is not a valid revision and it should be struck.

Several groups have weighed in on the argument.  Those arguing that Prop 8 should be invalidated by the Court include a group of 44 state lawmakers, the bar associations of several major cities, and the Anti-Defamation League.  Those arguing that Prop 8 should be enforced include Kingdom of Heaven, the Pacific Justice Institute (a religious “legal defense group”), and the American Center for Law and Justice (Pat Robertson's group).

Jerry Brown's office has appointed Senior Assistant Attorney General Christopher K. Krueger to defend Prop 8.  This is the same attorney who argued (unsuccessfully) in favor of Prop 22 and against marriage equality in the In Re: Marriage cases.

In the response that was filed today, the AG's office agrees that it's appropriate and preferable for the Supreme Court to address the lawsuits in the first instance (as opposed to requiring that the plaintiffs file in a trial court and the cases work themselves up to the Supreme Court.)  At the same time, the AG's office opposes the plaintiffs' request that Proposition 8 be stayed pending the outcome of these cases.  It argues that “a stay would change the status quo, allowing marriages that might later be invalidated, and would engender uncertainty about the legal status of same-sex marriages in California.” The AG's office does not (because it does not need to at this juncture) oppose the petitions on the merits.  The court, should it agree to hear the cases, will set a schedule for the AG to file its opposition papers.  

Also today, the Yes on 8 campaign filed a request to intervene in the cases and to file an opposition. Essentially they argue that they have a substantial interest in the lawsuit because they spent over $37 million to campaign for Prop 8's passage.  It's opposition was written by Andrew Pugno, a solo lawyer in Folsom who specializes in wills and trusts.

The Supreme Court will now make its decision about: (1) whether it wants to hear this case or if it is going to require that the plaintiff's first file in the Superior Court and (2) whether it will stay Proposition 8 pending the outcome of these cases.  If the Court agrees to hear the cases, it will set a briefing schedule.  

My prediction is that the Court's order will mirror the AG's request exactly.  It will agree to hear the case, it will deny the stay, and it will set a relatively quick briefing schedule.  I predict we have a hearing on the cases before Valentine's Day.  

I knew this protest was going to be big when I got to the MUNI station at Castro and it was overflowing with people. Being agoraphobic, I chose to walk to City Hall instead. Block by block, the crowd that I was walking with became bigger and bigger. As we approached Church Street, we were a full-on march. Cars driving along Market Street were honking and shouting words of support.

I arrived at City Hall to find the entire mall filled with people.  SF Police estimate the crowd at around 7,500.  I think they're underestimating. 

Supervisor (and Assemblymember-elect) Tom Ammiano captivated the crowd with his wonderful, unique, and powerfully hilarious style.  Assemblymember (and Senator-elect) Mark Leno never ceases to amaze me with the eloquence of his words.  (“We don’t live in a theocracy.  The genius of our constitution is that it allows freedom of all religions, but no holy book determines the law for others.”)  Senator Carole Migden delivered a fiery speech in which she proposed that Northern California form its own state (and elect her Governor). Unfortunately it took me awhile to make it to the stage, so I didn't get any pictures of the speeches.

The entire mall was a sea of signs, some homemade, others more professional.My favorite: “We Can't All Marry Liza Minelli”

One thing that was joyously missing were the crazy Fred Phelps protesters with their ridiculous signs.  Good riddance.

I found my friends Roger and Carl and they brought me over to their friends, including Armistead Maupin and his husband Christopher Turner.  Armistead and Christopher were married by Mark Leno two weeks after Brian and I.  It was touching to talk to both of them about our marriages while Mark delivered his rousing speech to the crowd.  

San Francisco Assessor-Recorder Phil Ting was there with his wife Susan and daughter Isabella (Susan and Isabella pictured below with the lovely Anna Damiani).  Phil had just flown in from China and he put off sleeping so he could stand up for our rights.  As our Recorder, Phil's signature appears on the marriage licenses (including my own) that have been issued to thousands of loving couples over the last six months.  He and Susan (and Isabella too!) are fighting hard to protect these sacred unions.  

Shortly after noon, the crowd began to march down Market Street toward the Castro.  A baricade was set up a Church Street, so many of the protesters turned around and marched back down Market Street toward Union Square.  According to the Chronicle, a small group of protesters were arrested when the blocked the freeway onramp at Octavia. 

A couple more pictures on the flip.  The entire set of pictures is here.

Anyone else with pics or stories of the SF Protest, please comment!