California's Supreme Court agreed
Wednesday to review three lawsuits that seek to invalidate
Proposition 8 – the constitutional amendment that forbids gay
marriage in the state – but denied a stay of the measure that would
have allowed gay couples to continue marrying in the state.
The court also indicated it would
decide the fate of 18,000 gay marriages that took place between June,
when a California Supreme Court decision that overruled a 2000
voter-approved marriage ban took effect, and November, when voters
agreed to ban gay marriage again.
In a closed session meeting in San
Francisco, California's highest court agreed to review the gay
marriage ban, but said it would not postpone its start. The court scheduled a hearing in March.
Proponents of the gay marriage ban have
already threatened to work to oust any justice who votes to
invalidate Proposition 8. And they have already begun targeting
politicians who support gay marriage, Senator Dianne Feinstein and
Governor Arnold Schwarzenegger included.
Tony Perkins of the Family Research
Council said last week that the governor was advocating “anarchy”
because he supported efforts to invalidate the constitutional
amendment. Forty-four Democratic legislators have signed a friend of
the court brief in support of the challenge.
Pro-gay rights activists announced they
would challenge the constitutional amendment the day after Election
Day, saying the measure was invalid because it altered the
Constitution itself, instead of merely amending it.
Proposition 8 alters the Constitution's
“core commitment to equality for everyone by eliminating a
fundamental right from just one group, lesbian and gay Californians,”
the pro-gay rights groups argue.
“If the voters approved an initiative
that took the right to free speech away from women, but not from men,
everyone would agree that such a measure conflicts with the basic
ideals of equality enshrined in our Constitution,” Jenny Pizer, a
staff attorney with Lambda Legal, said in a statement announcing the
Removing fundamental rights guaranteed
by the Constitution is a revision, not an amendment, supporters of
gay marriage say. Revising the state Constitution in California
requires a constitutional convention or legislative approval before
being sent to voters for approval.
“A major purpose of the Constitution
is to protect minorities from majorities,” said Elizabeth Gill, a
staff attorney with the ACLU of Northern California. “Because
changing that principle is a fundamental change to the organizing
principles of the Constitution itself, only the legislature can
initiate such revisions to the Constitution.”
A decision for review of the lawsuits
is not an endorsement of gay marriage. In fact, most scholars agree
the challenge is a longshot.
“It's very hard to argue that this
narrowly written Constitutional amendment changes the fundamentals of
our state government,” Ethan Leib, a Constitutional law professor
at UC Hastings in San Francisco, told SFGate.com.
Leib, who is a supporter of gay
marriage, called California's Constitutional amendment procedure
“flexible and inviting,” because “the people, rather than the
judges, get to say what the Constitution means.”