Prop 8 rehearing petition filed: People, I think they're going to overturn our marriages.

I hope I have to come back here and apologize all over the place for being 100% wrong, but I've got a bad, bad feeling about this.

Only three blogs have picked up on this, and there is NO news about it anywhere (although LezGetReal, which received email notification from the court, after business hours, has a call in to KRON to see if they're on it).

Just as I posted it on my own blog:

Docket (Register of Actions)
STRAUSS v. HORTON
Case Number S168047
. . .
06/05/2009 Rehearing petition filed
06/05/2009 Request for judicial notice filed (Grant or AA case)

Mixed Fruits: "No con-firmation (or any in-formation) on who filed petition for rehearing. However, something tells me it's Kenneth Starr coming back to take away the marriage of the 18,000 couples. It would make perfect sense - that would preempt part of the Olson and Boies constitutionality argument, because if I am not mistaken they probably would argue that Prop 8 is at the same time too overinclusive and too underinclusive. Were rehearing granted and 18,000 same-sex marriages nixed, that would make it harder to show its unconstitutionality."

As I just commented on LezGetReal: If it was our side that had filed, we would have heard something, from someone.

Lou Sheldon in particular said the H8ers were going to do it. And in the current climate of this shithole of a state I now live in, I think they're going to win. Again.

They can't make your marriage retroactively invalid.

Just change the constitution.

:sarcasm:

That was batted around a lot leading up to the election, and as I understand it, ex post facto applies only to criminal matters (based on Calder v. Bull, 1798). That would mean ex post facto was irrelevant unless a criminal penalty was imposed for violating Prop 8 after the fact.

Like I said, IANAL, but this was a frequent topic of discussion last year.

and plenty for not doing so. States occassionally change marriage laws to make them more restrictive. For example, going from permitting cousins to marry to forbiding cousins from marrying. When they do so, the marriages before the prohibition don't become invalid. Similarly, Georgia recently upped the age of conscent for marriage after a scandalous marriage but no marriage, including the one which caused them to change was rendered invalid. I think you are safe.

But the way these religious nutjobs are, I wouldn't put anything past them.

There's really no argument for retrospective application. A law has to be absolutely explicit for that to happen.

"Those fourteen simple words" they've been crowing about since Proposition 8 was hatched in their evil little minds. The same 14 words that were in Proposition 22:

"Only marriage between a man and a woman is valid or recognized in California."



They'll claim that makes any same-sex marriages, no matter when performed, invalid under the law and the Constitution.

Merely general language is not enough for retrospective application: the presumption is always that laws are to be interpreted as applying to the future unless it's very clear that the intention was otherwise. You can't just say "It's implied by the general statement", you have to be able to say, "It was explicitly and specifically meant to retroactively nullify the marriages prior to passage". And there's no such indication in the amendment language, and very little in Yes on 8's campaign literature. It's obvious why, too--campaigning to forcibly divorce 18,000 couples would not sell very well politically.

Everyone but Ken Starr and the people behind him think the 18,000 marriages are valid, including both the Attorney General and the entire Supreme Court. Nothing is going to happen to them.

In any case, I'm not sure why either side in this case would get a rehearing. What cause do they have? I'm pretty sure you have to point to some procedural problem; "I don't agree with the opinion" isn't good enough.

First, as many have suggested, what are they going to argue, that the court got it wrong? Unless it is their plan to appeal this to the feds. Furthemore, they are treading on even thinner ice here. The court originally stated there was a California constitutional right to marriage for all. The feds weren't going to over turn that. Then, they passsed an amendment to effectively remove this right. The California court said they could do that. The feds might have gone along with that because they followed procedure, although it isn't clear the procedures themselves would stand up to federal tests. However, they want to go another step and say that people who are already "legally" married can have their marriages nullified. The problem here is that they didn't nullify ALL marriages, only certain ones based upon a narrow definition that was previously determined to be a right. The feds might struggle even harder with that. If the California courts had never decided it was a right, they could be on more solid ground. But they are attempting to take away previously recognized rights, and they are attempting to do it on a narrow, discriminatory, basis. The federal courts could react badly to that. And really, California really ought to think this through because when those folks got married, a whole battery of property law was invoked, not to mention some parental rights laws. Untangling that could occupy the courts for years.

There is for the opponents of Prop. 8, because it is alleged to (and in my view does) violate both equal protection and due process "liberty" rights under the US Constitution, but there's no federal constitutional provision impinged by not nullifying the marriages, regardless of whether or not the Court's decision was right under California law.

On the other hand, if the Court had nullified the marriages, or in the extremely unlikely event that there both is a rehearing and that it results in such nullification, that would give rise to federal issues of due process: people would have upset and reordered their lives in accordance with then-legitimate expectations of certain rights and benefits, only to see those rights and benefits taken away.

But it won't even go that far. There almost certainly will not be a rehearing, and if there is, the Court will almost certainly decide yet again to uphold the marriages. There's no reasonable basis for them to do otherwise.

I tend to agree that the supporters of Prop 8 have nothing really to take to a federal level. Doesn't stop them from trying. I think they'd be foolish for all the reasons I outlined, some of which you also state. I just can't think of any other reason to request a rehearing. Even a denial of the rehearing would then give them the basis to appeal to the feds. (IIRC, you can't appeal a ruling in your favor, so they need one "against" them to proceed).

However, the Boies and olsen arguments are based on existing laws equal protection and due process - so I am still not pessimistic about this undercutting their efforts. in fact, it may show the dire need to try something legal rather than popular votes by bigots.

"Strauss v. Horton was the consolidation of three lawsuits following the passage of California's Proposition 8 on November 4, 2008, which went into effect on November 5. The suits were filed by a number of gay couples and governmental entities. Three of these six were accepted by the Supreme Court of California to be heard together. The oral arguments were made in San Francisco on March 5, 2009. These cases were new to the California Supreme Court, and Justice Kathryn Mickle Werdegar stated that it will set precedent as "no previous case had presented the question of whether an initiative could be used to take away fundamental rights".<1>

The court rendered its decision on May 26 instead of May 25 due to the Memorial Day holiday.<2> The ruling established that proposition 8 was valid as voted, but that marriages performed before it went into effect would remain valid...

Majority
On Tuesday, May 26, the California Supreme Court reported its decision on the validity of Proposition 8 and the 18,000 same-sex marriages in question.<16> The proposition was upheld, but existing marriages were be allowed to stand.<17> Both the majority and Justice Werdegard emphasized that the ruling applied specifically to the use of the designation "Marriage", and that the ruling left the domestic partnership institution as well as several protections from In re Marriage Cases completely unaffected.<18>

Concurring
Justices Kennard and Werdegar filed concurring opinions. Kennard noted primarily that whereas "interpretation" of the law is a Judicial power, "alteration" is not, and as the proposal altered the language to be interpreted, it could not possibly violate the separation of powers. Werdegar considered that much of the argumentation of the majority regarding the difference between a "revision" and an "amendment" was flawed, expressing specific concern that the ruling "gives the foundational principles of social organization in free societies, such as equal protection, less protection from hasty, unconsidered change than principles of governmental organization."<18>

Dissent
Justice Moreno's dissent agreed with the petitioners' contention that "requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution" and thus should be considered a revision.<18>

Citing Varnum v. Brien, Moreno stated that "equal protection principles lie at the core of the California Constitution and have been embodied in that document from its inception,"<18> and that "promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment."<19> He concurred with the majority over the fact that the 18,000 valid marriages before Proposition 8 would remain (thus, Proposition 8 is not retroactive), as well as concurring with the majority opinion that "Proposition 8 does not entirely repeal or abrogate a same-sex couple’s substantive state constitutional right to marry as set forth in the Marriage Cases." Despite this, he dissented on the major question at issue and stated that Proposition 8 was indeed a constitutional revision that required a two-third legislative vote, citing article 18 of the California Constitution and the history of the 1962 amendment, Proposition 7.<18>

- http://en.wikipedia.org/wiki/Strauss_v._Horton"

Upd3. Stand down, everyone. The National Center for Lesbian Rights has responded in an email with Ms. Minter's name at the bottom. The email states that it was, in fact, the Center that filed the petition for rehearing to correct one factual error in the opinion, so as to avoid future reliance on it by California's courts. See next post.

http://mixed-fruits.blogspot.com/2009/06/prop-8-rehearing-petition-filed.html

:)

Not quite comprehending the logic of this yet (first reaction: WHY didn't "we" challenge it on federal grounds the FIRST time?!), but relieved as all git out.

Whew!

P.S. Guess who the "alert reader" was that tipped off Queerty? (Queerty gets a LOT more attention than my blog, and has better connections. LOL)

citizens.

conquered that the previous marriages were still legal.

...that is the matter of those out-of-state same-sex couples married during the window of time (May 2008 to Nov 4th 2008) when it was legal for same-sex couples to marry. The CASC ruling which upheld Prop 8 but left as valid the 18,000 in-state same-sex marriages performed during this window specifically refused to rule on how CA would treat the marriages of same-sex couples who married in the same time frame, but who married out of state or out of country. There is no asterisk coupled with the Prop 8 constitutional amendment to state any exceptions to the "one man, one woman" amendment language. So...if a same-sex married couple was married in, say, Canada or Massachusetts, during those 4 months when same-sex marriages were recognized as legal in CA, would that couple's marriage still be recognized in CA (should that couple move to CA in the future)?

The justices were very specific in not ruling on the validity of same-sex marriages performed during that 4 months outside of California. So, in effect, the justices left a huge, gaping legal quagmire that can only be determined by future lawsuits. I expect the bigots to try to push for clarification on this issue as it has the potential of adding thousands more same-sex married couples to that "18,000" number of "special class" married same-sex couples. This could really be a factor in the federal case...