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Harvey Milk Still Lives: Gay Marriage Law May Be Up To Supreme Court

harveymilk2.jpgMaybe Harvey Milk is having an effect after all.

The gay San Francisco supervisor, who was assassinated some 30 years ago by a disgruntled fellow pol, bitterly fought for gay rights and would probably never have rested in the topsy-turvy fight against Proposition 8.

Now the subject of a Gus Van Sant film, “Milk,” due out Nov. 26. the timing couldn’t be much better for Focus Features, which is distributing.

That Gay Marriage law, which was enforced then turned down by the fickle California voters, will now have an Act III when the California Supreme Court, not the federal one, will take up the issue, the L.A. Times opines.

The court, in its pro-gay-rights mode, astonishingly said it would review legal challenges to Proposition 8, the voter initiative that restored same-sex marriage.

In its anti-gay-rights take, the court refused to permit gay weddings to resume pending a final decision.

More on the court’s decision below:


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.

The court’s action, taken during a closed conference, suggested that 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 high court’s 4-3 ruling in 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.

Some analysts said the timeline for a hearing in the spring bodes well for the challengers, while others said it indicated nothing about the court’s leanings.

“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. He said the delay could indicate that the justices were divided and needed time to resolve the issues.

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.

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” time- table 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 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.”

California Atty. Gen. 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,” the spokesman said.

Schwarzenegger has said he expected the court to overturn the proposition and indicated that he favored that outcome.

Dana Perlman, a Los Angeles lawyer who married his partner, Hugh Kinsellagh, in July, said watching the court has been “painful.”

“I’m excited the court is taking the case,” said Perlman, who along with his spouse is one of an estimated 18,000 same-sex couples who have married since June, when the California Supreme Court ruling took effect. But he said he is “pained . . . having to sit and wait for the men and women in black robes” to decide the fate of his marriage.

Since voters approved Proposition 8 earlier this month, opponents have filed six lawsuits to overturn it. The court agreed to review three of them.

Gay rights advocates argue that the measure was a constitutional revision, instead of a more limited amendment. A revision of the state Constitution can be placed before the voters only by a two-thirds vote of the Legislature or a constitutional convention. Proposition 8 reached the ballot after a signature drive.

In addition to asking for more written arguments on the revision question and the status of existing marriages, the court told lawyers to address whether Proposition 8 violated the separation of powers doctrine under the California Constitution.

Gay rights lawyers have argued that the measure took away the ability of California’s courts to ensure equal protection for minorities who have historically suffered discrimination.

The lawsuits also contend that the initiative was a constitutional revision because it denied equal protection to a minority group and eviscerated a key constitutional guarantee. Supporters of Proposition 8 counter that it merely amended the Constitution by restoring a traditional definition of marriage.

The court’s previous rulings on similar lawsuits have been mixed. The court has upheld at least six initiatives and rejected only two that were challenged as illegal revisions.

Supporters of Proposition 8 have threatened to try to oust any justice who votes to overturn the measure, but the official campaign has distanced itself from that threat. The court’s members serve 12-year terms and appear on the ballot unopposed in retention elections. Opponents could try to unseat them during their retention elections or try to mount a recall.

Although the court tends to defer to voter sentiment on initiative challenges, it has overturned popular ballot measures.

In 1966, the California Supreme Court struck down a 1964 initiative that would have permitted racial discrimination in housing. Voters had approved the measure, a repeal of a fair housing law, by a 2-to-1 margin. Opponents challenged it on equal protection grounds, not as a constitutional revision.

At the next judicial retention election, the margin of victory for the justices who were on the ballot declined by about 20%, said Bob Stern, president of the Center for Governmental Studies and an expert on the initiative process.

Federal courts overturned another contentious initiative, Proposition 187, the anti-immigration measure passed by voters. Unlike state judges, federal judges have lifetime tenure and do not face voters.

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