Thursday, November 20, 2008

California Supreme Court grants review, denies immediate stay in Proposition 8 lawsuits

You can find the Court's order here and the press release here.

11/19/08 Yes on 8 press release; 11/19/08 Equality California press release

11/19/08 Leonard Link
: New York Law School Professor Arthur S. Leonard offers these comments on the "suprise holdout," Justice Joyce Kennard. Although she was in the In re Marriage cases majority, she would have denied review except on the status of marriages conducted between June and November:

"Tea-leaf readers will be pondering the significance of Justice Kennard's action, since she was part of the 4-3 majority that decided the case. Does this signal that she has doubts about the merits of petitioner's case, or merely that she has objections to the issue being presented in this forum in this manner? Inquiring minds are dying to know....."

11/19/08 The Volokh Conspiracy: UCLA School of Law Professor Eugene Volokh thinks that "that the California Supreme Court will reject the state constitutional challenges to Prop. 8, and conclude that Prop. 8 amends the state constitution in a way that supersedes the court's interpretation of the preexisting constitutional provisions." He adds that the Court is unlikely to reach the question of the federal constitutional guarantee of equal protection under Romer v. Evans.

11/19/08 National Review - Ed Whalen's "Bench Memos": M. Edward Whelan III is the President of the Ethics and Public Policy Center. He directs EPPC’s program on The Constitution, the Courts, and the Culture. He writes that "Justice Kennard, who joined the majority ruling in May, voted to deny the petitions without prejudice, so that would seem to suggest that she’s not eager to take the extraordinary action of invalidating Proposition 8. But all of this is reading tea leaves from afar."

11/19/08 Alliance Defense Fund press release: “In America, we respect the results of fair elections,” said ADF Senior Counsel Glen Lavy. “We look forward to working with allied attorney Andy Pugno to protect the people’s will expressed in Proposition 8, which restored the definition of marriage to the California Constitution. The lawsuits against the amendment are just one more effort by the far-left to redefine marriage.”

11/20/08 Daily Journal (subscription required): Laura Ernde reports this comment by Santa Clara University Law Professor Gerald Uelmen:

"I think it makes sense for [the Court] to resolve all of these issues at once," Uelmen said. "I don't think we can read anything into it in terms of which way the court is leaning on the merits."

Ms. Ernde also states that, in Uelmen's view, "the briefing schedule is fast, especially considering the weighty constitutional issues at stake."

11/20/08 The Recorder: Mike McKee reports reactions by San Francisco City Attorney Dennis Herrera, Chief Deputy City Attorney Therese Stewart, National Center for Lesbian Rights Executive Director Kate Kendell, California Attorney General Jerry Brown, Andrew Pugno, the Folsom lawyer who represents the Proposition 8 Official Proponents, Santa Clara University Professor Gerald Uelmen, and Randy Thomasson, president of the Campaign for California Families, whose intervention the Court declined.

"Kendell said it was 'impossible to read the tea leaves' on Kennard's position to dismiss most of the petitions. And Stewart said it would be 'hard to infer' her reasoning."

"Pugno said Kennard's stand 'seemed to indicate that the lawsuits had so little merit that she thought that they should be dismissed all together' and 'reflect her interest in what I think will become the central issue -- and that is whether the marriages performed during the time before the election will be recognized and, if so, how?' "

Justice Kennard "may believe the parties challenging the validity of the initiative itself," Uelmen said, "should go through the hoops of filing a case in the superior court and getting a resolution [at] the court of appeal before coming back to the Supreme Court; but that the question about the marriages should proceed expeditiously."

11/20/08 Los Angeles Times: Maura Dolan and Jessica Garrison report comments from several legal scholars:

"'If the justices were really leaning towards upholding Prop. 8, and that was clear, they would have wanted to do it as quickly as possible and put the issue to rest,' said UCLA law professor Brad Sears, an expert on sexual orientation law."

"UC Berkeley law professor Goodwin Liu said the court's refusal to put Proposition 8 on hold pending a ruling did not suggest that the court would eventually uphold the measure. 'A stay is an extraordinary measure,' he said."

Shannon Price Minter, legal director of the National Center for Lesbian Rights, was asked about Justice Kennard's vote to deny review with respect to post-election marriages. "I am neither worried nor complacent. I just feel like with all of them we have our work cut out to convince them. There is no telling where any of them stand."

"'We see today as a grand slam,' said Andy Pugno, general counsel of Protect 'Everything we asked for was granted' ... "He said Kennard's vote 'seemed to indicate that she thought the lawsuits had . . . little merit.' "

11/20/08 SF Chronicle: Bob Egelko reports the following reactions:

"'It's always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn't warrant review,' said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court."

Dennis Maio, a former research attorney for Justice Stanley Mosk, said that for Prop. 8 opponents, "I would not think it [apparently Justice Kennard's vote] would be encouraging."

11/20/08 Sacramento Bee
: Aurelio Rojas reports comments by Erwin Chemerinsky, dean of the UC Irvine School of Law, Shannon Minter, Andrew Pugno, and Northern California ACLU attorney Elizabeth Gill. While he finds the grant of review "predictable," Chemerinsky said he was "surprised" that the Court would also consider whether Prop. 8 applies to marriages between June and November. [At least, that development appears to have surprised Chemerinsky; Rojas strikes me as ambiguous on this point. Michael Ginsborg]

11/20/08 San Diego Union-Tribune: Greg Moran reports the following comments:

" 'It doesn't tell us anything about how the justices will rule on the merits of the litigation,' said Jennifer Pizer, a lawyer with the LAMBDA Legal, a same-sex civil rights group. 'It simply tells us six justices agree this is an issue of statewide importance.' "

Asked about Justice Kennard's vote, "Andrew Pugno, the lawyer for the Proposition 8 proponents, said "it indicates that she thinks the challenges are 'so flimsy the court should not spend time on it' and instead focus on the marriages that have happened. He added that “Major changes to the constitution over the years, such as Proposition 13 or term limits, were challenged as revision, too. They were always upheld.”

Shannon Minter comments on separation of powers and equal protection.

"Persuading the court to overturn the measure could be an uphill battle, said Glenn Smith, a constitutional law professor at California Western School of Law in San Diego."

11/20/08 NY Times: " 'The California Supreme Court has never articulated criteria for what makes something an amendment versus a revision,' said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine. 'So I don’t think you can predict anything because there is so little law.' " The NY Times reports Andrew Pugno's expectation that the Court will uphold Prop. 8; Jennifer Pizer's calim that it “essentially nullifies the equal protection guarantee"; and Joseph Grodin's belief that recall pressure on the majority judstices in In re Marriages is not intense now as it was when voters removed three Court justices in 1986.

11/20/08 Reuters
: Reuters provides comments by Shannon Minter and Andrew Pugno.

" 'It would be a radical departure from 150 years of precedent (to overturn Proposition 8),' said Pugno, calling the challenge a 'long shot.'

" 'I think the larger question is going to be what is the status of the marriages that were created prior to the election,' Pugno said, adding that he had not taken a legal stand on the issue."


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