CA Supreme Court to Hear Challenges to Prop 8

The California Supreme Court agreed today to hear legal challenges to Proposition 8, which protects traditional marriage as the only form that is “valid and recognized” in the state and won on Nov. 4th with 52% of the vote.

The court will hear three issues: (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?”

From Ed Whelan:

I don’t know what significance, if any, to assign to the court’s procedural step. The three dissenters from the May marriage decision joined the court’s order, so that would suggest that the order itself doesn’t signal any predisposition on the court’s part. Further, 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.

Some very quick thoughts on the merits of the issues: On issue 1, Eugene Volokh and Stephen Bainbridge have explained why they believe Proposition 8 is an amendment, not a revision; Dale Carpenter finds the question a closer one.

I don’t see how issue 2 has any independent force: even if one were to assume that Proposition 8 somehow implicates separation of powers, how can a constitutional amendment violate the constitution (unless, say, the constitution itself specifies that its separation of powers is unamendable)?

On issue 3, I think that there’s a lot of confusion about prospectivity versus retroactivity. Proposition 8 states: “Only marriage between a man and a woman is valid or recognized in California.” From the effective date of Proposition 8 forward, that rule ought to govern state actors prospectively, both as to same-sex marriages performed before its effective date and any purported to be performed after.

I make no predictions as to how the court will actually rule, as a court that can render the May marriage decision is capable of any sort of judicial malfeasance.