David Codell - California Supreme Court Review of Prop 8

12/30/08 announcement of the Human Rights Campaign's Los Angeles Steering Committee: On January 27, 2009, the Committee will host a presentation by constitutional attorney Dave Codell, "an attorney who was part of the team who wrote the brief to the California Supreme Court, resulting in the 15 May 2008 decision ruling that denying gay and lesbian couples the right to marry is unconstitutional."

Long-Term Commitment - The Recorder's annual retrospective on the California Supreme Court

12/31/08: Santa Clara University law professor Gerald Uelmen repeats his belief that the California Supreme Court will uphold Prop. 8. Of In re Marriage Cases, 43 Cal.4th 757, he says that the Court "clearly went out on a limb, and the people sawed it off." If the Court invalidates Prop. 8, Uelmen predicts a recall movement to oust Chief Justice Ronald George.

Although California Attorney General Jerry Brown recently reversed his position on Prop. 8, Uelmen rejects Brown's argument that Art. I, Sec. 1, of the California constitution protects an "inalieable right" of liberty at the core of the right to marry, and that a majority vote can not, without compelling justification, abridge this fundamental right. "He's suggesting that if you label a right inalienable that somehow it becomes untouchable by constitutional amendment," Uelmen said. "And I think that just turns the constitution on its head."

Kent Richland, an appellate specialist at Los Angeles firm Martin, Stein & Richland, accepts Brown's argument: "You are essentially talking about a majority of the people being able to determine that any minority has less rights than others," he said. "And that's contrary to the fundamental concept of equal protection. There's reason to think that this court would be extraordinarily disturbed by any system in which a minority isn't entitled to the same rights as others."

UC Berkeley law professor Jesse Choper believes that if the Court sustains Prop. 8, it will not also invalidate the 18,000 same-sex marriages performed before the election. He bases his belief on an analogy: if nullifying the marrages "were not the denial of a civil benefit, but an imposition of a criminal sanction, it would be unconstitutional to be ex post facto."

Justice Kennard denied review of Prop. 8, except on the question of retroactive application, because, Richland says, "she saw [retroactivity] as a crucial issue that had to be resolved immediately, but that the other issues could go through the trial court, the court of appeal and the Supreme Court. She's always not wanted the Supreme Court to act precipitously."

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The Recorder's profile of attorney Frederick Hertz

12/30/08 The Recorder (subscription required): "The mustached mediator has written books for same-sex couples looking to form or dissolve relationships." Listen to the Cal Law interview here.

California Attorney General Jerry Brown first in decades to go against voters

12/23/08 San Francisco Chronicle: Chronicle reporter Bob Egelko says that Brown's "argument against the initiative isn't based on any clearly established legal doctrine or precedent, the standard suggested by Deukmejian and other former attorneys general."

Former California Attorney General and Governor George Deukmejian believes that absent case law to support his argument on Prop. 8, Brown should defend the law.

According to Egelko, former California Attorney General John Van de Kamp "said Brown would probably be on more solid ground if he were arguing that Prop. 8 violated the U.S. Constitution, rather than invoking the California Constitution."

Former California Attorney General Dan Lungren finds " it's very troubling when you [referring to Brown] announce that you're going to defend (Prop. 8) and then, some weeks later, say you're not going to defend it."

Jerry Brown Talks to Cal Law Legal Pad About Prop 8

12/24/08 Cal Law Legal Pad: Interviewed by Mike McKee of The Recorder, California Attorney General Jerry Brown "said he believes that legal experts who think his position has no chance haven’t read the high court’s ruling in In re Marriage Cases, 43 Cal.4th 757. 'There are some fundamental principles that America is based on,' he said."

Brown's Stand on Prop. 8 Raises New Questions

12/24/08 Los Angeles Times: "California Atty. Gen. Jerry Brown's decision to throw the weight of his office behind same-sex marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative."

Jerry Brown Proposes a New Theory Against the Validity of Proposition 8

12/21/08: New York Law School Professor Arthur S. Leonard summarizes and assesses issues raised in the briefs filed on 12/19/08 by California Attorney General Jerry Brown and Yes on 8 counsel Kenneth Starr. Professor Leonard finds no precedent for Brown's argument that Prop. 8 should be overturned because it violates the state constitution's guarantee of fundamental liberty.

SF Chronicle backs California Attorney General Jerry Brown

12/23/08: "California Attorney General Jerry Brown has made the principled and politically risky decision to oppose Proposition 8 in court ... Brown's 111-page filing with the California Supreme Court makes a compelling case that the measure's attempt to deprive same-sex couples of the right to marry conflicts with the state Constitution's underlying guarantees of individual liberty , which are ingrained in its very first sentences.

California Attorney General Brown reverses his position on Prop. 8, urging the Court to invalidate it; Yes on 8 would undo 18,000 same-sex marriages

12/19/08 California Attorney General press release: “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Attorney General Brown said. Click here for the brief, in which the Attorney General also argues that Prop. 8 neither represents a constitutional nor violates separation of powers.

12/21/08 NBC San Diego News: " 'It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative,' Brown said in an interview Friday night. 'Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote.' "

12/19/008 Reuters: "The right of same-sex couples to marry is protected by the liberty interests of the constitution," Brown told Reuters, referring to In re Marriage Cases. "If a fundamental right can be take away without any particular justification, then what kind of a right is it?"

12/19/08 AP, 12/20/08 San Francisco Chronicle, 12/20/08 Sacramento Bee, and 12/20/08 NY Times:

These articles provide summaries of arguments in briefs filed by Brown and Kenneth Starr, representing Yes on 8.

12/20/08 Los Angeles Times has the following statements by Brown, Santa Clara University Law Professor Gerald Uelmen, and UC Berkeley Law Professor Gordon Liu:

"In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. 'This analysis was not evident on the morning after the election,' he said."

Uelmen said Brown's argument "turns constitutional law on its head" and lacks support from any case law that he knows. He finds that it "it is much too radical for this court."

Liu said it was "extraordinary for the chief law enforcement officer of the state to decline to enforce a law -- even on the grounds that it is unconstitutional."

"The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees," Liu said. "Whether or not it will carry the day, I have no idea."

12/20/08 San Jose Mercury News:

Brown rejected Liu's view that the Attorney General has a duty to defend Prop. 8. Brown compared his duty with that of California Attorney General Thomas C. Lynch, who opposed Prop. 14 in Reitman v. Mulkey, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967). Voters approved Prop. 14 in 1964 to overturn a fair housing law and to bar laws against racial discrimination in housing. According to the Mercury News, "It's unusual, but it happens," Brown said of an attorney general opposing existing law. "Existing laws include the whole of the constitution, and just as Attorney General Lynch filed a brief calling for the invalidation of Proposition 14, we're filing a brief here calling for the invalidation of Proposition 8."

12/20/08 Res Ipsa Loquitur blog: George Washington University Professor Jonathan Turley believes that "Brown’s position creates an interesting issue of legal ethics and obligations" and characterizes it as "hopelessly conflicted." He also believes that defenders of Prop. 8 have overreached in their attempt to retroactively invalidate pre-election, same-sex marriages.

12/19/08 Cal Law Legal Pad: This post has initial reactions to Brown's reversal by Therese Stewart, San Francisco Deputy City Attorney, and by Jennifer Pizer, staff attorney for the Los Angeles branch of the Lambda Legal Defense and Education Fund.

Vikram Amar: The California Supreme Court’s Delicate Position in the Challenge to Prop. 8, and the Hurdle for Challengers: Part Three in a Series

12/19/08 Findlaw's writ: This is the third article in a multi-part series on the legal challenges to Prop. 8. Vikram Amar, a UC Davis Law Professor and constitutional scholar, discusses two conditions that the Court must satisfy to gain acceptance of a decision to invalidate Prop. 8:

1. If such a decision were "not actually dictated by past precedent, then the opinion would at least need to demonstrate its firm foundation in past cases."

2. "[T]he theory of "revision" the opinion adopts would have to be defensible in its own right." It must represent "a coherent and attractive way of limiting voter discretion that won't require the drawing of arbitrary lines."

Today's filing of briefs in Prop. 8 litigation: Kenneth Starr joins the legal defense of Prop. 8

Here is news about today's filing of briefs in the Prop. 8 litigation:

12/19/08 LA Times LA Now Blog: Times reporter Jessica Garrison states that "California Atty. Gen. Jerry Brown, who opposed Proposition 8 but is legally bound to defend the state’s laws, and his staff were still polishing his brief Thursday night." But others have disputed Brown's duty to defend Proposition 8, including Times editors in this editorial article.

12/18/08 ProtectMarriage.com - Yes on 8 press release: "Joining the legal defense of Proposition 8 is Kenneth W. Starr." The 12/19/08 LA Times LA Now Blog and 12/19/08 CNN News also have news about this development.

Pros and cons of Prop. 8: It falls to Atty. Gen. Jerry Brown to present a thoughtful legal argument for, or against, the initiative.

12/18/08 Los Angeles Times: This Times editorial appears to suggest that if California Attorney General Jerry Brown opposes Proposition 8 on constitutional grounds, he should follow the precedent of the California Attorney General who opposed Proposition 14, when, in 1964, voters adopted that initiative to repeal and bar fair housing laws.

[The Times editors state that "In 1967, California Atty. Gen. Thomas C. Lynch argued against Proposition 14, a rollback of fair-housing laws that was ultimately found unconstitutional." The two cases that challenged Proposition 14 are Prendergast v. Snyder, 64 Cal. 2d 877 (1966), and Mulkey v. Reitman, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967). Lynch filed an amicus brief urging affirmance in Mulkey, 387 U.S. 369 (1967), 1585. But Attorney General Stanley Mosk appears to have been the California Attorney General who set the precedent that Lynch followed.]

Couples in court case lack diversity

12/18/08 Bay Area Reporter: The amended petition in Strauss v. Horton adds seven couples to the plaintiffs. Howard Rice represents the couples pro bono. Two Howard Rice partners, Amy Margolin and Bobbie Wilson, respond to criticism that "none [of the couples] are black or Hispanic, leaving a void as LGBTs of color seek to be visible." Margolin noted that "[o]ur couples come from all walks of life with a variety of different backgrounds," while Wilson acknowledged that "the face of the fight has for the most part been white."

Domestic Tranquility

12/16/08 Daily Journal (subscription required): This article concerns steps employer can take to offer domestic partner benefits. One of the writers, Todd A. Solomon, is author of Domestic Partner Benefits: An Employer's Guide. Solomon and Brian J. Tieman, both of McDermott Will & Emery, advise that employers should start with benefits that are not governed by the Employee Retirement Income Security Act of 1974. "A first step is to extend the company's nondiscrimination policy to cover sexual orientation."

Same-sex marriage case brings Napier back to Iowa (ADF attorney in Iowa case also comments on Prop. 8)

12/14/08 [Iowa] Daily Gate: Attorney Douglas Napier is a legal consultant for the Alliance Defense Fund, which represented Proposition 22 Legal Defense & Education Fund in the In re Marriage Cases. Napier said that the Iowa Supreme Court did not afford him opportunity to participate in the December 9th oral arguments in Varnum v. Brien. The case involves six same-sex Iowa couples who seek to marry. They are challenging the the Iowa Defense of Marriage Act, on grounds of due process and equal protection under the state constitution. About Varnum v. Brien, Napier observes: "One of the questions asked (of same-sex marriage supporters) is how does your reasoning prevent multiple partners? They didn't give a very satisfactory answer."

Napier says that "70 percent of the African-American community voted against [Prop. 8]. How dare they hijack the civil rights movement for their case. Apparently 40 million Americans are bigots."

According to the Daily Gate, Napier gave a number of media interviews. See, for example, his comments in this 12/09/08 Des Moines Register article. In a "sit-down with Register editorial writers ," Napier claims that Varnum plaintiffs " don't have those [due process and equal] protections, because no one has ever granted protected ... status based on sexual behavior." Camilla Taylor, a senior attorney for Lambda Legal, disputed his claims. She said that opponents of same-sex marriage would "deny families the protections they need to take care of each other." She also characterizes the Alliance Defense Fund as "an extremist organization that takes anti-gay positions on a number of issues." She adds that ADF's "positions ... do not reflect the mainstream."

California Cities and Same-Sex Couples Join SF's Prop. 8 Challenge

12/11/08 San Francisco Weekly: The San Francisco City Attorney filed an amended petition yesterday that, according to its press release, "brings to fifteen the number of local governments challenging the validity of Proposition 8." The amended petition would also "add seven married couples as petitioners in the action to address a question, posed by the high court, about Proposition 8’s effect on the marriages of lawfully wedded same-sex couples should the validity of the controversial measure be upheld. As private parties, the couples are represented by pro bono outside counsel from the San Francisco-based law firm of Howard Rice Nemerovski Canady Falk & Rabkin." Howard Rice partner Amy Margolin observes that "[t]his [action] is really about securing marriage rights for everyone in California, not just the couples who had the opportunity to marry [before Prop. 8 passed]."

Panel: N.J. should OK same-sex marriages

12/10/08 Star-Ledger News: "The final report of the New Jersey Civil Union Review Commission [not yet released] says it gathered 'overwhelming evidence' that the civil union law not only fails to provide the same protections as marriage, it also has created economic, medical and emotional hardships for gay couples.

Jay Sekulow on "Proposition 8: Respecting the Will of the People"

12/3/08 Lynn v. Sekulow blog*: Jay Sekulow, chief counsel of the the American Center for Law & Justice, views legal challenges to Prop. 8 as another "example of a court being asked to improperly usurp the will of the people."


*"Lynn v. Sekulow is an ongoing debate blog--a blogalogue--about how big (or little) a role faith and religion should play in American politics and government, featuring the two leading voices of the church/state battle: American Center for Law & Justice Chief Counsel Jay Sekulow and Americans United for Separation of Church and State Executive Director Rev. Barry W. Lynn."

A civil right or moral issue? Marriage-rights activists draw link to other efforts

12/10/08 The Desert Sun (Palm Springs): Mathew Staver, founder of Liberty Counsel and Dean of Liberty University School of Law, finds it "offensive to frame [same-sex marriage] as a civil rights issue." He considers it a "moral issue" instead. The Desert Sun identifies Barbara Cox as a "national authority on sexual orientation and the law and professor at California Western School of Law in San Diego." Cox responds to one reason for viewing same-sex marriage as a moral issue - that gays choose to be gay: "My response is that heterosexuals don't believe they choose to be straight." She adds that religious affiliation also reflects a choice, a choice involving rights that are"strictly protected."

Attorneys conclude Iowa Supreme Court arguments in gay marriage case

12/9/08 DesMoinesRegister.com: This article has a summary of today's oral arguments, and a link to the Des Moines Register's video of the arguments.

“How do you stop?” asked Justice Mark Cady. “How do you stop more than two people from getting married?”

KCCI.com, a website of a local Des Moines television station, posts a 12/10/08 article, Justices Hear Historic Same-Sex Marriage Case. “The plaintiffs, in their circular reasoning, failed to answer the question, why should this court and these seven justices establish public policy in Iowa,” said Douglas Napier, an attorney with the Alliance Defense Fund.

See also the 12/10/08 Family Law Prof Law Blog, "Updates on Same-Sex Marriage: Iowa, NJ, California."

Vikram Amar and Alan Brownstein: The Core Issues in the Proposition 8 Case Before the California Supreme Court: Part Two in a Series

12/05/08 Findlaw's Writ: In this second article in a multi-part series on the legal challenges to Prop. 8, UC Davis Law Professors and constitutional scholars Vikram Amar and Alan Brownstein address the following question:

Was Proposition 8 a Valid Amendment, or an Invalid Revision, to the California Constitution? And Should the Court - Or Governor Schwarzenegger - Make the Decision?

Nossaman attorney Jan Vaughn Mock on "Domestic Partnership: Separate, Unequal"

12/05/08 The Recorder (subscription required): Attorney Jan Vaughn Mock finds no equivalence between domestic partnerships and marriage, as "proponents of constitutional discrimination would have you believe."

Proposition 8 Draws on Parallels To Prohibition, Some Scholars Say

12/05/08 Daily Journal (subscription required): Erwin Chemerinsky, founding dean of UC Irvine School of Law, finds an analogy between the likely fate of Prop. 8 and the 21st Amendment, repealing prohibition. He believes that just as majority moral sentiment reversed itself on prohibition , so it is already reversing itself on gay marriage. Other legal scholars dispute or support Chemerinksy's anlogy, including John C. Eastman, dean of Chapman University School of Law, and David Cruz, a constitutional law professor at USC's Gould School of Law.

Attorneys Respond to Eva J. Patterson's 11/21/08 Recorder Article, "Prop. 8 Overhauled the [State] Constitution"

12/05/08 Recorder Letters to the Editor: Two Recorder readers respond to Eva Patterson's article. Attorney Edward J. Taffe invokes Webster's dictionary to support his claim that "Prop. 8, like Prop. 22 before it, vindicates the most basic tenets of democracy." Attorney Russell Davis favors procreation as a rational basis for the state to ban gay marriage. And he rides a familiar, slippery slope from protection for "loving, caring, and sharing relationships" in gay marriages to protection for polygamy and "plural marriages."

Report of Alliance Defense Fund video on "outrageous behavior from homosexual activists"

12/4/08 ADF Alert:

"Dakota Voice reports: 'This is the Alliance Defense Fund (ADF) video put together of some of the outrageous behavior from homosexual activists after Californians voted for Proposition 8 to return marriage to the normal, natural definition: between a man and a woman.' "

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Deb Kinney to speak tonight at the Marin County Marriage Equality Forum on Proposition 8

12/4/08 press release bt San Anselmo-based Spectrum LGBT Center: The Recorder identifies Deb L. Kinney as a "leading estate planning attorney within the LGBT community." She is also a board member of Equality California. A summary of her comments can be found here.

Jerry Brown has a legal obligation to oppose Prop. 8

12/4/08 SF Chronicle: Derald E. Granberg, former staff attorney, of the California Attorney General's office, expresses his opinion that Attorney General Jerry Brown has no less an obligation to oppose Prop. 8 than his predecessor, Stanley Mosk, when Mosk opposed Proposition 14 (1964), repealing fair housing protections.

Reactions to the California Legislature's Resolutions Opposing Proposition 8.

Click here for California Senate Resolution 7 (SR 7), authored by Senator Mark Leno, and here for Assembly House Resolution 5 (HR 5), authored by Assembly Member Tom Ammiano.

SR 7 emphasizes "the crucial deliberative role of the Legislature in any proposed revision of our Constitution." The resolution adds that the "Legislature is specially suited to examine and
debate significant changes to the principles and structure that underlie the California Constitution, and is structured for precisely such a task." Santa Clara University Law Professor Gerald Uelmen believes that, in deciding the "amendment v. revision" question, the California Supreme Court must recognize the importance of the Legislature's deliberative role. He states that "the court should be asking whether the change [an initiative] measure accomplishes is significant enough that the adversary deliberation of a legislative proposal or a constitutional convention is necessary."

The 12/03/08 SF Chronicle has comments by U.C. Berkeley Law Professor Jesse Choper and Andrew Pugno, attorney for the Yes on Proposition 8 Campaign. Other news sources include the 12/03/08 Sacramento Bee. "Leaders of the ProtectMarriage.com - Yes on Proposition 8" issued this 12/2/08 press release, which appears to be a source of Pugno's comments to the SF Chronicle.

Are Utah and Arkansas the New Centers of the Gay Rights Movement?

12/3/08 Jurist Legal News and Research:

"JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that in the wake of California voters' endorsement of Proposition 8, amending the state Constitution to restrict the definition of marriage to a union between a man and a woman, the battle for gay rights may now shift to other states and focus on issues other than marriage equality..."

Attorney Fredrick Hertz: "I Said 'I Do' With My Same-Sex Partner--But Am I Married?"

11/30/08 Nolo Press article: Frederick Hertz, Oakland attorney who runs the website SameSexLaw.com, offers "educated guesses" on how the following questions might be answered, and addresses uncertainties with respect to taxes and divorce:

• For those married in California: Is our marriage valid at all?
• For Massachusetts and Connecticut residents who married in their home state: Will our marriage be valid if we leave the state?
• For non-residents who married in Massachusetts and Connecticut: Is our out-of-state marriage valid in our home state?

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Eyes on Iowa gay marriage case

11/21/08 Iowa Press-Citizen: "Six same-sex Iowa couples, including a family from Iowa City, are listed as a plaintiff in Varnum v. Brien. If the court finds in favor of the plaintiffs, same-sex marriage will be legal in Iowa. Oral arguments in the case will be heard Dec. 9 ... Des Moines lawyer Dennis Johnson is serving as co-counsel for the Iowa case with Lambda Legal."


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Comments by Shannon Minter on Justice Kennard's vote to deny review

11/25/08 Washington Blade: The Washington Blade reports on statements by Shannon Minter, legal director of the National Center for Lesbian Rights, during a 11/21/08 conference call. In In re Marriage Cases, Minter successfully argued before the California Supreme Court that same sex couples have the fundamental right to marry.

"Minter said [Justice] Kennard has made it clear in other decisions that she 'really does not like the court to have to decide very important issues on a shortened time frame.'

" 'There’s a very good chance that that was her concern and she would have liked us to file [our petitions] at a lower court,' he said. 'You really cannot draw any conclusion whatsoever about where she’s leaning based on that vote.' "

Minter believes that Prop. 8 presents the California Supreme Court with a "constitutional crisis," because if the Court upholds Prop. 8, that "would be the first time that an initiative has successfully been used to take a right away just from one single group of people."


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Legal experts puzzled over California justice's seeming reversal on Prop. 8

11/25/08 LA Times: Reporter Maura Dolan states that "a close reading of the court's one-page order suggests that gay-rights advocates may have lost [in California Supreme Court Justice Joyce Joyce Kennard] a usually predictable ally in their effort to overturn Proposition 8." UCLA law professor Brad Sears said that "[i]t definitely isn't a good sign" that Justice Kennard vote against review of Prop. 8 with respect to post-election marriages. UC Berkeley law professor Jesse Choper believes that she appears to think that Prop. 8 "isn't worth reviewing." Santa Clara University law professor Gerald Uelmen notes that the Chief Justice Ronald George and Justice Kennard will have a decisive role in the Court's ruling. He speculates that Justice Kennard may have concluded that a majority is unlikely to rule in a way she would otherwise favor. UC Irvine Law School Dean Erwin Chemerinksy said that "[s]he is a justice who will do what she thinks is right as to the law without any regard to what the political consequences are."

August 2008 Nolo Press Interviews With Attorney Fredrick Hertz

August 2008: Rich Stim of Nolo Press interviewed attorney Frederick Hertz on the status and history of same-sex marriage in California on 08/06/2008 and 08/31/2008.

Los Angeles Gay and Lesbian Center Virtual Town Hall Meeting on 11/25/08: Prop. 8: The Facts and Future

11/25/08: "The 90-minute online forum will be hosted by Karen Ocamb, news editor at Frontiers and IN Los Angeles. It will be broadcast live via streaming audio ... A recording of the town hall meeting will be available here within 24 hours." The LA Times has a brief summary here. The Palm Springs Desert Sun reports these comments by Shannon Minter, legal director of the National Center for Lesbian Rights:

“I'm worried about that myself,” Minter said. “People that do not like our community can come back at us and take other rights as well. They certainly have not been shy about doing that in other states.

“I'm confident at the end of the day that we will have equality. But we're going to have to fight for it and fit for it very hard.”

Anti-Prop 8 Counsel David Codell Visits Drexel Law

11/24/08 press release by Drexell University Earl Mack School of Law: David C. Codell, lead counsel for petitioners in Strauss v. Horton, "talked with Drexel Law students on Nov. 21 about efforts to repeal the recently enacted prohibition."

“Proposition 8 is the first time in California history that the initiative process has been
allowed to undermine equal protection,” Codell said.

Minorities fear trend from California gay marriage ban

11/24/08 Reuters: This article quotes University of Southern California law Professor David Cruz and Stanford University law professor Jane Schacter, who notes that California has throughout its history a "track record" of minority discrimination.

Prop. 8 is a tangle for state's high court

11/23/08 Sacramento Bee: In this opinion article, former Bee legal reporter Claire Cooper quotes Pacific McGeorge law Professor Lawrence Lavine, UCLA law Professor Eugene Volokh, and UC Davis law professor Vikram Amar. Cooper observes that courts have a "high responsibility" when reviewing equal protection challenges.

Lavine said that the outcome of Prop. 8 litigation will depend on how the California Supreme Court define the case. "If the subject is marriage, then Proposition 8 is a constitutional amendment. But if the subject is who can enjoy equal protection of the laws, it's a revision and a sea change in the way the constitution is applied to protect all of us."

Volokh appears to share the view of Alliance Defense Fund's senior counsel, Glen Lavy - that the Court will restore official recognition of marriage as limited to heterosexual couples.

In Hi-Voltage Wires Works Inc. v. City of San Jose, 24 Cal. 4th 537 (2000), the California Supreme Court upheld Proposition 209, which prohibits affirmative action in university admissions, public employment, and government contracts. Amar believes a Court which upheld Prop. 8 is unlikely to overturn Prop. 8.

Cooper states that the "U.S. Supreme Court 70 years ago said courts have a special duty to protect groups whose access to the political process has historically been hampered by public prejudice." (She appears to reference dictum by Justice Stone in U.S. v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938). Justice Stone identified a central purpose of "strict scrutiny" review of equal protection claims - to examine whether " prejudice against discrete and insular minorities ... tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.") "Amar says that declaration is 'the very premise of modern equal protection law.' Echoes can be found throughout the state Supreme Court's decisions interpreting the California equal protection clause."

Vikram Amar: Analyzing the Two Key Arguments in The California Supreme Court Case Regarding Proposition Eight: Part One in a Series

11/21/08 FindLaw's Writ: In this first part of a projected series, U.C. Davis law professor Vikram Amar considers the import of Justice Kennard's vote to deny review of petitions except on the status of pre-election marriages, and whether the California Supreme Court is likely to see Prop. 8 as an amendment or a revision.

Gerald Uelmen on assessing whether a constitutional initiative is a revision: Does his "test" have bearing on Prop. 8 petitions?

Gerald Uelmen, Handling Hot Potatoes: Judicial Review of California Initiatives after Senate v. Jones, 41 Santa Clara L. Rev. 999, 1017, 1019 (2000-2001):

"In defining 'revision,' the supreme court should recognize that legislative or convention deliberation or debate hold several advantages over the initiative process as instrument of change." (1017) Uelmen believes that the shortcomings of initiatives - such as drafting gaffes and obfuscation by special interests - become "most important in the context of complex changes, which require ongoing interpretation and application ... Rather than merely offering a label [as in "fundamental" change] to reinstate a conclusion, the court should be asking whether the change the measure accomplishes is significant enough that the adversary deliberation of a legislative proposal or a constitutional convention is necessary. "


"Ultimately, the value we are seeking to uphold is the value of rational discourse before we make changes in our constitution with widespread impact. The test of what is a 'revision' must include an assessment of what was lost in the elimination of that rational discourse by the use of the initiative process." (1019)

Can Uelmen's test be applied to Prop. 8, even though it does not make a "complex" change? Because opponents of Prop. 8 contend that it denies equal protection and a fundamental right to a "suspect class," should they underscore the need for a deliberative process, by considering evidence of the corrosive, if successful, effects of prejudice and fearmongering on persuading a bare majority of voters to pass Prop. 8? Uelmen notes that the anti-crime initiative, Proposition 115, "was presented to the public in a media blitz of coat hangers and gas chambers," even though the Court overturned Proposition 115 as an unconstitutional restriction on judicial power. (1017)

Eva Jefferson Paterson: Prop 8 Overhauled the Constitution

11/21/08 The Recorder (subscription required): Eva Jefferson Paterson is president and a founder of the Equal Justice Society, a San Francisco-based civil rights legal organization. Equal Justice Society was one of several civil rights groups that filed a petition to overturn Prop. 8. (Asian American Legal Center et al. v. Horton et al., Cal. Supreme Court case no. S168281). Paterson says that by "purporting to deny equal protection to one group, Prop 8 threatens the most basic principle of our democracy: that all people have an inalienable right to equal treatment under the law ... Our petition, like the petitions the court agreed to hear in its ruling this past Wednesday, argues that Prop 8 is a radical change to our state constitution that cannot be accomplished through an initiative. If it only takes a bare majority to take away the most fundamental guarantee of equal protection, then we are truly all at risk."

Campaign for California Families' Efforts to Intervene in Prop 8 Litigation Denied

11/20/08 SF Weekly: The Yes on 8 Campaign sent a mass e-mail to its members on November 19th, faulting the Campaign for California Families (CCF), whose request to intervene the California Supreme Court declined. According to the e-mail, "Campaign for California Families...actually campaigned against Proposition 8 until a short time before the election. Since we are the only organization representing the official proponents and the campaign committee that was responsible for passing Prop 8, allowing outside groups to participate in the defense of Prop 8 will only harm our chances of success." Matthew Staver, CCF attorney and founder and chairman of Liberty Counsel, would not speculate on why Yes on 8 opposed CCF's attempt to intervene, but observed that both groups aim to "defend and support Proposition 8."

Supreme Court Defers Ruling on Last Three Prop. 8 Cases

11/20/08 California Constitution post, by appellate practitioner Steve Mayer, of Howard Rice.

Santa Clara County Counsel Ann Ravel: Santa Clara County Fights for Equal Right to Marry

11/12/08 San Jose Mercury News: Santa Clara County Counsel Ann Ravel explains why Santa Clara County has joined the legal challenges to Proposition 8:

"This county is part of the legal challenge to Proposition 8 because we recognize the importance of upholding our most cherished legal principles. If California is allowed to vote our way back into discrimination, we betray the values that are central to our society. The challenge to Proposition 8 upholds the social pact of equality that helped form the foundation of our society and ensures that each of us can count on fair treatment under the law."

The Santa Clara County Counsel's website also has a description of the case it joined, City and County of San Francisco v. Horton, under "Ongoing Cases."

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 Marriage.com. '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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NCLR Director Shannon Minter and Chapman University School of Law John Eastman Dean Debate Prop 8 on the Laura Ingraham Talk Radio Show

11/19/08 PAXALLES: An unidentifiable blogger describes this debate hosted by Laura Ingrahm, a talk show radio broadcaster, former white-collar defense attorney at Skadden, Arps, and speechwriter in the Reagen Administration. To listen to this program, you must pay for a subscription.

The Recorder announces 12/10/08 Recorder Roundtable, "NOW WHAT? CHALLENGING PROPOSITION 8 AND ADVISING SAME-SEX COUPLES IN THE MEANTIME."

The Recorder Roundtable will be moderated by Morrison & Foerster partner James Brosnahan. Panelists include "Bobbie J. Wilson, Litigation Director with Howard Rice and lead pro bono counsel for the City and County of San Francisco, Mayor Gavin Newsom, and former Assessor Mabel Tang in the marriage cases for same-sex couples."

Prop. 8 hinges on who decides: judges or voters

11/19/08 SF Chronicle:

According to Ethan Leib, a constitutional law professor at UC Hastings, it is "very hard to argue that [Proposition 8, a] narrowly written constitutional amendment changes the fundamentals of our state government ... [Because California has a] "flexible and inviting (constitutional) amendment procedure ...the people, rather than the judges, get to say what the Constitution means."

Vikram Amar, a constitutional law professor at UC Davis, adds that if the California Supreme Court rules that Proposition 8 is a constitutional revision, such a ruling could "lead us down a slippery slope." If Proposition 8 is a constitutional revision because unpopular minorities require constitutional protection from majority rule, then the same argument could apply to criminal defendants.

Former California Supreme Court Justice Joseph Grodin said that "You shouldn't be able to take away those [fundamental] rights [of a minority] simply by putting another measure on the ballot and having a majority vote."

In 1978, voters passed Proposition 7, restoring the dealth penalty and declaring that the death penality is not cruel and unsual punishment. In People v. Frierson, 25 Cal. 3d 142 (1978), the California Supreme Court upheld Proposition 7, despite its 1972 ruling that the death penalty is cruel and unsual punishment. UC Hastings Law Professor Calvin Massey said, "I can't think of any more fundamental right than to not have my government put me to death. That was found to be an amendment, not a revision."

Proposition 8 Litigation Generates a Mountain of Paper

11/19/08 Leonard Link blog: New York Law School Professor Arthur S. Leonard summarizes issues raised in the petitions and letters against Proposition 8; in the requests for stay of implementation; in the preliminary response by the California Attorney General; and in a Pacific Justice Institute letter to deny review and stay.

Yes on 8 attorney Andrew Pugno tells LA Times that voters could reinstate the ban on interracial marriage as a constitutional amendment

11/19/08 LA Times: Opponents of Proposition 8 have asked the California Supreme Court to consider a hypothetical constitutional initiative to reimpose a ban on interracial marriage. Maureen Dolan reports that, according to Yes on 8 Campaign attorney Andrew Pugno, "voters could indeed resurrect a ban on mixed-race marriages if the issue had been decided purely on state constitutional grounds."

California Attorney General Jerry Brown asks California Supreme Court to review Proposition 8 challenges, and allow Proposition 8 to take effect

Click here for the reply filed on 11/17/08 by the California Attorney General's Office.

11/18/08 LA Times: Maureen Dolan of the LA Times reports this comment by Santa Clara University Professor Gerald Uelmen:

"Because Brown defined the legal dispute as a 'statewide concern,' it makes sense to bypass the lower courts and just go ahead and hear them."

11/18/08 Recorder: "I've never litigated this case for the last 4 1/2 years under the illusion that the AG is on the side of the people," Liberty Counsel president Mathew Staver said. "I've never seen a real vigorous defense of the marriage laws from the beginning. That's why it's important to have Liberty Counsel in the case."

Oakland appellate practitioner Jon Eisenberg said, "Right now, the big threshold issue is, 'Do we take up the case now or do we take up the case later?' It's quite significant that the attorney general has said, 'Do it now.'"

11/18/08 SF Chronicle: Proposition 8 "does not alter the balance of power between the branches of government, nor does it undermine or eliminate fundamental rights," said Mary McAlister, a lawyer for the Campaign for California Families.

11/18/08 The Daily Californian: Shannon Minter, legal director of the National Center for Lesbian Rights, believes that UC Berkeley Boalt Hall School of Law may file a brief in the current round of Proposition 8 litigation.

11/17/08 AP: Andrew Pugno, an attorney for the Yes on 8 campaign, said, 'Everyone knows the AG opposed Proposition 8, did everything he could to undermine it and it still passed anyway.
“There is little hope he would make much effort at all to defend Prop. 8."

11/17/08 San Jose Mercury News

Chin Shows Feisty Side at Conference

11/17/08 Cal Law Pad: Covering the 11/14/08 Boalt Hall Conference on the Supreme Court of California, Recorder reporter Mike McKee reports on comments by Santa Clara University Law Professor Gerald Uelmen and other In re Marriage Cases panelists.

A federal bailout for Prop. 8: A Colorado battle may offer a means of challenging California's same-sex marriage ban

11/17/08 LA Times: In this opinion article, Brian E. Gray, professor at the UC Hastings College of the Law, argues that Romer vs. Evans, 517 U.S. 620 (1996), might provide the U.S. Supreme Court sufficient precedent to invalidate Proposition 8 if challenged under the equal protection clause of the 14th Amendment.

Yes on 8 Campaign attorney Andrew Pugno on "Legal Defense of Prop 8 Election Results"

11/17/08 Traditional Marriage blog: Andrew Pugno, attorney for the Yes on 8 Campaign, summarizes issues raised in the motion to intervene by the five official Proponents of Proposition 8, and the ProtectMarriage.com – Yes on 8 campaign.

Pugno claims that the "whole point of the initiative process is for the people to be able to pass laws despite opposition from government leaders. It just makes no sense that we should have to rely solely on hostile government leaders to defend the will of the people when they opposed the measure in the first place."

Comments Reported At Boalt Hall Conference on the Supreme Court of California

At the 11/14/08 Boalt Hall Conference on the Supreme Court of California, the LA Times and other media report on comments by speakers in the panel discussion - moderated by Justice Kathryn Werdegar - of "the pre-Proposition 8 right of gays and lesbians to marry."


11/15/08 Los Angeles Times: "Santa Clara University Law School Professor Gerald Uelmen opined that the court could not overturn Proposition 8 without also admitting that its May 15 decision improperly revised the state Constitution...Werdegar, the panel's moderator, frowned and ignored the comment...Earlier she had said that the state high court must provide independent review when state constitutional issues were at stake, even if it meant overturning a vote of the people."

Calif. homosexuals try to 'gut democratic process,' says Alliance Defense Fund counsel Glen Lavy

11/15/08 OneNewsNow.com (a division of the American Family News Network): ""We see the opponents of marriage and democracy trying to bypass the political process and use the courts to overturn the will of the people," said Glen Lavy, senior counsel for the Alliance Defense Fund. "This lawsuit is nothing but a brazen attempt to gut the democratic process. It's really a reprehensible lawsuit." Lavy "reminds" the California Supreme Court about the prospect of a judicial recall if the Court overturns Proposition 8.

Prop 8 in the California Supreme Court -- Update

11/14/08 Waldlaw Blog: Deborah Wald is Founder of the Wald Law Group, Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights, and Co-Chair of the Board of Directors of Our Family Coalition. In this post, she quotes from the November 10th amicus curiae letter filed by several civil rights groups. She finds that they have chosen "strong words" to defend of equal protection and constitutional democracy, and contends that a fundamental issue in the litigation concerns the meaning of constitutional democracy.

Supreme Court Wants More Briefs on Prop 8

11/12/08 Cal Law Legal Pad: San Francisco Chief Deputy Attorney Therese Stewart was asked about the California Supreme Court's request for reply by the California Attorney General:

“This is what I would call a toe in the water. But it’s serious. The court could have dismissed [the cases] right out of hand.”

State high court interested in Prop. 8 suits

11/14/08 SF Chronicle: Senior assistant attorney general Christopher Krueger comments on the California Supreme Court's request to reply to preliminary questions about the Proposition 8 litigation, including whether the Court should grant review and suspend Proposition 8 while it decides the case. He said that "it's fair to infer that the court is looking at these (cases) very carefully," because usually the Court dismisses attempts to take cases directly to the Court, without allowing the other side to reply.

Irving Greines is an appellate lawyer who filed a letter by the Beverly Hills Bar Association and California Women Lawyers in support of the petition for writ of mandate. According to Greines, the Court's request to the AG "indicates that the Supreme Court sees the seriousness and immensity of the issue, and before it takes any action it wants to hear from Jerry Brown."

Comments on NPR by Erwin Chemerinksy and Mathew Staver

11/13/08 Morning Edition:

Chemerinksy argues that Proposition 8 is not retroactive:

"There is a general presumption in California law that changes in rights apply only prospectively, and by this notion, since Prop 8 doesn't say it applies retroactively, any existing same-sex marriage would still be valid."

Liberty Counsel founder Mathew Staver argues that Proposition 8 is retroactive:

"When [the U.S. Constitution's 13th Amendment] was passed, it abolished slavery. You were not grandfathered in as a slave holder, and you did not carry on your property interest in a slave after passage of the 13th Amendment."

PJI Defends Prop. 8 at California Supreme Court

11/13/08 Press Release by Pacific Justice Institute: "'It is being argued that voters can never undo judicial decisions - even when the courts insert themselves into public policy debates,' noted PJI Chief Counsel Kevin Snider. 'If accepted, that argument will eviscerate California's initiative process.'"

ADF Senior Counsel Glen Lavy: Reaction shows pretense of tolerance is over

11/13/08 The San Diego Union Tribune: Repeating his claim that Proposition 8 litigation "guts the democratic process," Lavy adds that it is a "tough sell to the millions of voters who have followed the democratic process to protect marriage twice."

ADF senior counsel Glen Lavy: Don't tinker with matrimony

In this 11/12/08 blog post to USA Today, Alliance Defense Fund senior counsel Glen Lavy contends "that domestic partnerships are a Trojan horse used to obtain same-sex 'marriage,'" on the grounds that they are not needed for the only purpose Lavy ascribes to them - to convey benefits among gay partners.

Comments to the LA Times by Joseph Grodin, Erwin Chemerinsky, Gerald Uelman, and Glen Lavy

UC Irvine Law School Dean Erwin Chemerinsky told the LA Times (click here for the 11/6/08 article) that "[t]here is very little law about what can be done by amendment as opposed to revision." Santa Clara University Law School Professor Gerald Uelman finds the case a "stretch," while former Supreme Court Justice Joseph Grodin believes that the legal challenge has merit. According to Alliance Defense Fund senior counsel Glen Lavy, the lawsuits represent "a brazen attempt to gut the democratic process."

The law and Prop. 8: California's Supreme Court will have to untangle two important legal questions.

In his 11/10/08 LA Times article, U.C. Berkeley Law Professor Gordon Liu says that even if it does not subtantially change the government's framework, Proposition 8 "targets a historically vulnerable group and eliminates a very important right. Changing the Constitution -- the state's paramount law -- in such a momentous way arguably calls for deliberative rather than direct democracy. Indeed, as early as the nation's founding, our constitutional tradition has favored representative democracy over simple majority rule when it comes to deciding minority rights."

Why Prop 8 Can – and Must – Be Overruled

Paul Hogarth, a former a law school intern at Equality California, claims that "our state’s equal protection clause can become Swiss cheese" if voters may, by a simple majority, adopt constitutional amendments that deprive minorities of equal protection.

DC Metro Reports Comments By Shannon Minter, Legal Director, National Center of Lesbian Rights

11/13/08: Washington, D.C., Metro Weekly:

'''The California Constitution itself makes it very clear that a change to one of the underlying principles of our state constitution cannot be enacted through a simple majority vote,'' Minter continues. 'It has to be done through a more deliberative process. So the question is, does Proposition 8 significantly change a core, underlying principle of our constitution? We think that the answer is absolutely yes. It's eliminating the principle of equal protection. If you can take away equal protection from one minority group, you can take it away from any group, and that's a very dangerous change.'''

NYU Law Professor Arthur S. Leonard: Proposition 8 Passage Generates Lawsuits and Battle Over Meaning

11/11/08 Leonard Link: NYU Law Professor Arthur Leonard provides an overview and analysis of issues raised in the Proposition 8 litigation. He finds petitioners' reliance on Raven v. Deukmejian, 52 Cal.3d 336 (1990), "a difficult argument to make" for the view that Proposition 8 represents a constitutional revision, not an amendment.

O.C. couple pursue same-sex marriage rights in federal court

11/7/08 Orange County Register: The U.S. Supreme Court declined to hear a previous, 2004 case brought by plaintiff couple to force Orange County to recognize their marriage. In the new lawsuit, the "complaint seeks to have the state constitution, as amended by Prop. 8, be declared unconstitutional under rights guaranteed under the U.S. Constitution, said their attorney, Richard [C.] Gilbert." Gilbert also announced his endeavor to place an initiative on the 2010 ballot that would divide California into two states. "New California" would have a constitution that recognized the fundamental rights of all people.

11/7/08 Sacramento Bee Reports Comments By Gerald Uelmen

11/7/08 Sacramento Bee:

"Gerald Uelmen, a law professor at Santa Clara University and a constitutional law expert, called the suit 'a long shot.'

"Only once, Uelmen said, has the state Supreme Court 'struck down any portion of an initiative because it was a constitutional revision.'

"He said the 1991 case involved an initiative – Proposition 115 – that made sweeping changes by requiring the bill of rights in the state constitution to conform with the U.S. Constitution.

"'I don't see this court saying that what (it) did in the marriage case was such a substantial revision of the California Constitution that you can't undo it because it's a revision of the constitution,' Uelmen said."

"But Katherine Darmer, a professor at Chapman University School of Law, believes 'there is some chance that this litigation will succeed.'

"'This court has already found that gays and lesbians have equal protection," she said.
Darmer sees some parallels in the civil rights movement of African Americans, where courts intervened to protect the rights of minorities.

"In the early 1960s, for example, the California Supreme Court overturned a voter initiative that repealed the Rumford Act, the state's fair housing law.*

"Uelmen has a different take on the next step in California for supporters of gay marriage.

"'It'll be on the ballot again because I don't think the court is going to come to the rescue,' he said."

[*Here is the context for Katherine Darmer's reference. In 1964, by a two-to-one margin, voters passed Proposition 14. It amended the state constitution (under article I, section 26) to repeal fair housing laws and to bar the legislature from enacting laws to remedy racial discrimination in housing. The state and U.S. Supreme Courts - in Prendergast v. Snyder, 64 Cal. 2d 877 (1966), and Reitman v. Mulkey, 387 U.S. 369 (1967) - ruled that the amendment was unconstitutional on equal protection grounds under the 14th Amendment. I wish to credit Stan Yogi and Elaine Elinson as my source of this information. They are authors of a forthcoming work on the history of civil liberties in California, and they shared a draft chapter from their book.]

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Unpacking the Challenges to Prop. 8: A Q&A With USC’s David Cruz

11/7/08 Wall Street Journal Law Blog : David Cruz, a constitutional law expert at the University of Southern California, answers questions about the Proposition 8 litigiation.

Same-sex marriage issue back to state top court; statement by California Attorney General Jerry Brown

11/06/08 SF Chronicle: California Attorney General Jerry Brown says that "It is my belief that the courts will hold that these same-sex marriages entered into are valid."

California Prop 8 Aftermath: Strauss v. Horton, the State Court Challenge

11/06/08 The Faculty Lounge: UC Hastings School of Law Professor Calvin Massey doubts that Strauss v. Horton petitioners will convince the Court that Proposition 8 is a constitutional revision:

"The contention of the Prop 8 opponents in Strauss v. Horton is essentially that an elimination of a judicial intepretation of California's equal protection guarantee works such a fundamental change in the constitutional structure than it can only be accomplished by revision. Yet, Frierson and Crawford upheld initiatives that did just that. (Crawford did so at most by implication.) The Prop 8 opponents distinguish both cases (the Frierson change applied to all Californians, Prop 8 only applies to gays and lesbians; Crawford only involved a remedy), but I am not convinced by either attempt to distinguish these cases. Raven involved a complete abdication of constitutional independence; Prop 8 is a specific limit on the intepretation of California's equal protection guarantee but otherwise leaves California courts free to do what they have always done in interpreting the state constitution. "

Massey concludes that "[f]or better or worse (no pun intended), this is an issue that ultimately must be fought out in the context of the federal Constitution. ."

Proposition 8 Passes: What Now?

11/05/08 Stephen Bainbridge.com Punditry blog: UCLA law professor Stephen Bainbridge discusses two legal issues raised by the Proposition 8 litigation:

1) Is Proposition 8 an amendment or revision?

Relying on Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239 (Cal 1978), Bainbridge concludes that "Prop 8 looks like an amendment."

2) Is Proposition 8 retroactive?

Posting comments by USC Law Professor David Cruz, Bainbridge observes that uncertainty surrounding retroactive application "was a strong argument against Prop 8 as it was worded."

Herrera Joined by Los Angeles, Santa Clara Counterparts in Suing to Invalidate Prop 8

11/05/08 Press Release of San Francisco City Attorney Dennis Herrera: In his press release, Herrera states that "If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority— even for protected classes based on race, religion, national origin and gender."

ACLU Press Release: Legal Groups File Lawsuit Challenging Proposition 8, Should It Pass

11/5/08 ACLU Press Release: Comments by Jenny Pizer, a staff attorney with Lambda Legal, Elizabeth Gill, a staff attorney with the ACLU of Northern California, and Shannon Minter, Legal Director of the National Center for Lesbian Rights.

Californians Enshrine Discrimination in Constitution: Prop 8 passage ensures questions

11/05/08 Cruz Lines: USC Law Professor David Cruz says that "[e]ven if [Proposition 8] bars California from continuing to treat those couples as married, it probably (though this remains to be worked out) would not stop other states from recognizing the pre-Prop 8 marriages."

What Will Happen to California Same-Sex Marriages?

11/05/08 Volokh Conspiracy: UCLA School of Law Professor Eugene Volokh examines four outcomes of Proposition 8 for California same-sex marriages. He continues to doubt that they will remain valid. See his 6/23/08 post on whether Proposition 8 is retroactive.

Letter from legal scholars about Proposition 8: LEADING LEGAL SCHOLARS REJECT PROP 8 ARGUMENTS

10/30/08 San Diego Union-Tribune: "Today the NO on Prop 8 campaign released a rare joint statement signed by 59 distinguished law professors concluding that the Prop. 8 campaign's legal arguments are false ... The list of scholars include Erwin Chemerinsky, the Founding Dean of the University of California School of Law; Kathleen Sullivan, Former Dean of Stanford Law School; and Paul Brest, Dean Emeritus of Stanford Law School."

Gay married couples face legal limbo if Prop. 8 passes

10/30/08 Los Angeles Times

Maureen Dolan and Jessica Garrison of the LA Times report:

"But after researching the issue, New York University law professor Kenji Yoshino, who favors same-sex marriage, concluded that the U.S. Constitution would offer few protections to existing gay marriages if Proposition 8 passed."

Santa Clara University Law Professor Gerald Uelmen expresses his view that such marriages would not remain valid if the voters pass Proposition 8.

Is the Proposed California Same-Sex Marriage Ban an Unconstitutional "Revision" by Initiative?

06/23/08 Volokh Conspiracy Blog: Relying on Raven v. Deukmejian, 52 Cal. 3d 336 (1990), UCLA School of Law Professor Eugene Volokh contends that the "proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision. He adds that although Proposition 8 "would cut back on the scope of a state constitutional right," that result shouldn't affect this analysis, or otherwise make the amendment unconstitutional."

Los Angeles Superior Court Research Attorney Kevin Norte on Whether Prop. 8 is an Amendment or Revision

05/21/08 Metropolitan-News Enterprise: Kevin Norte is a research attorney assigned to Judges Ronald Sohigian and Gregory Alarcon. He concludes from his examination of case law that Prop. 8 is a revision.