Class Action

More breaking news (off-topic): Supreme Court issues order to show cause in Prop. 8 cases

By Kimberly A. Kralowec

This is off the topic, but this afternoon the Supreme Court issued an order to show cause in the cases challenging the validity of Proposition 8, which purports to strip away the Constitutional right of equal protection from a minority group of California citizens.  Regardless of how one feels about the merits of same-sex marriage, the case is fascinating to me from the standpoint of appellate procedure.  This is the relevant text from the court's order, copied from the docket in Strauss v. Horton, no. 168047: 

The State of California, the Attorney General, the State Registrar of Vital Statistics, and the Deputy Director of Health Information and Strategic Planning of the California Department of Public Health are ORDERED TO SHOW CAUSE before this court, when the above entitled matters are called on calendar, why the relief sought by petitioners should not be granted.

The issues to be briefed and argued in these matters are as follows: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, sections 1-4.) (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?

The return is to be filed by respondents, and a brief may be filed by intervenors, in the San Francisco Office of the Supreme Court on or before Friday, December 19, 2008. A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Monday, January 5, 2009. Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, January 15, 2009. Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Wednesday, January 21, 2009.

Moreno, J. joins this order except that he would grant the requests to stay the operation of Proposition 8 pending this court's resolution of these matters. Kennard, J. would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption. Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

The Supreme Court has a special web page with copies of pertinent filings from the case, including the order to show cause.  On a personal note, my own marriage to an Asian-American man would have been "illegal and void" in California 60 years ago (and in two thirds of the rest of the country 40 years ago), so I feel particularly interested in how this turns out. 

Full post as published by The UCL Practitioner on November 19, 2008 (boomark / email).