Wednesday, November 19, 2008

Supreme Court agrees to hear Prop. 8 arguments

What does this mean?

First, the court refused to stay Prop. 8, which means that same sex couples may not continue to get married pending resolution of the issue.

They did, however, agree to decide whether Prop 8 is valid and whether it affects marriages that took place before November 4.

Mostly, the court's order means that the issue will be resolved sooner rather than later. Procedurally this means that the Supreme Court is not going to force the issue to be heard by a trial court and then an intermediary court of appeal before it makes a decision. We are skipping the middle man.

Also, the court issued a VERY tight briefing schedule. All briefing is to be completed by January 21st. Don't think that's very soon? You've never written an appellate brief. Trust me, there are lawyers cancelling their holiday plans even as I write. This is excellent news in that it means the court is serious about getting this issue resolved quickly. That doesn't say anything about which way they will decide it, of course, but they probably will decide it soon. At least soon in the tortoise-like time frame of the California Supreme Court. Maybe late spring. But don't hold your breath.

A very curious aspect of the court's order is that they are deciding the issue of retroactivity; that is, does Prop 8 affect the marriages that have already taken place. The petitioners (3 groups: couples who got married, couples who want to marry, and counties that want to issue marriage licenses to same sex couples) did NOT raise this issue. I presume this was for a very good strategic reason. The longer those 18,000 couples remain married and society continues not to crumble, the weaker the case against same sex marriage appears in the eyes of the public.

Justice Kennard dissented from the order. She would have preferred that the petitioners specifically and only raise the issue of retroactivity. This seems like a bad sign to me. It suggests that she thinks that Prop 8 is valid, but wants to get to the issue of the marriages that have already taken place with that issue squarely and properly before the court. Because, of course, if you are going to decide that the measure is invalid you never have to reach the issue of retroactivity. Justice Kennard was a strong vote in favor of marriage equality the first time around, so this feels ominous to me.

On the other hand, Justice Moreno would have issued the stay on Prop 8 going into effect. I think we have his vote!


Post a Comment

Subscribe to Post Comments [Atom]

<< Home