Calif. Supreme Court to Take up Gay-Marriage Ban
The Los Angeles Times
By Maura Dolan and Jessica Garrison
November 19, 2008

SAN FRANCISCO — The California Supreme Court voted 6-1 Wednesday to review legal challenges to Proposition 8, the voter initiative that restored a ban on same-sex marriage, but refused to permit gay weddings to resume pending a final decision. The court’s action, taken during a closed conference, suggested the court wants to resolve all of the legal issues surrounding Proposition 8, including the fate of existing gay marriages, in a single ruling.

It also indicated that at least one of the court’s seven members, Justice Carlos R. Moreno, may be leaning in favor of overturning the measure. Moreno, who joined the state Supreme Court’s 4-3 ruling last May to strike down a state ban on same-sex marriage, was the only justice to support granting a stay of the proposition.

In a move that puzzled some legal analysts, Justice Joyce L. Kennard, a generally reliable supporter of gay rights, voted to “deny” review of the Proposition 8 challenges. The court gave no indication of her reasons but said she was willing to hear a separate case on the validity of existing gay marriages.

The court may hold a hearing on the lawsuits as early as March, a timetable that scholars said was swift considering the complexity and importance of the legal issues. Some analysts said the delay bode well for the challengers, while others said it indicated nothing about the court’s leanings.

“If the justices were really leaning towards upholding Proposition 8, and that was clear, they would have wanted to do it as quickly as possible and put the issue to rest,” said University of California, Los Angeles, law professor Brad Sears, an expert on sexual orientation law. He said the delay could indicate that the justices were divided and need time to resolve the issues.

University of California, Berkeley, Law Professor Goodwin Liu said the court’s refusal to put Proposition 8 on hold pending a ruling did not suggest the court would eventually uphold the measure. “A stay is an extraordinary measure,” he said.

Lawyers pressing the legal challenges praised the court and also refused to draw inferences from the court order.

Shannon Price Minter, a lawyer for the National Center for Lesbian Rights, one of the litigants, expressed gratitude for the “extremely fast” timetable and disappointment that the court did not permit same-sex marriages to resume pending a final ruling.

“We are concerned that there may be some couples who will never be able to marry because of this because of death or illness,” Minter said.

Asked about Kennard’s vote to refuse to hear the challenges, Minter said: “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.”
The campaign for Proposition 8 also praised the court’s action, which granted the campaign the right to argue in favor of the measure.

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

California Attorney General Jerry Brown, whose office also will defend Proposition 8, called the court’s decision to review the cases “welcome news.”
“The matter of Proposition 8 should be resolved thoughtfully and without delay,” Brown said.

Gov. Arnold Schwarzenegger released a terse statement through an aide. “The governor believes the Supreme Court ought to bring clarity to this issue,” said the spokesman.

Schwarznegger has previously said he expected the court to overturn the proposition and indicated he favored that.