Nov 28, 2008  |  By: CHRIS JOHNSON  | COMMENTS     

Although one California Supreme Court justice voted last week against taking up lawsuits challenging Proposition 8, a gay attorney said the justice was among those to previously rule for marriage rights.

Shannon Minter, legal director for the National Center for Lesbian Rights, sought to allay concerns during a Nov. 21 conference call following Justice Joyce Kennard’s lone vote against the court’s majority decision to take up the lawsuits.

“I know that has caused some anxiety on the part of some people,” Minter said, “and I just want to assure everyone … there’s nothing in itself to worry about.”

Kennard was one of the votes that tipped the scales of the court in May when it issued a 4-3 decision granting marriage rights to gay couples.

Minter said Kennard has made it clear in other decisions that she “really does not like the court to have to decide very important issues on a shortened time frame.”

“There’s a very good chance that that was her concern and she would have liked us to file [our petitions] at a lower court,” he said. “You really cannot draw any conclusion whatsoever about where she’s leaning based on that vote.”

The court agreed Nov. 19 to take up three lawsuits filed in response to the Election Day passage of Proposition 8, which stripped away marriage rights for same-sex couples in California. The court also agreed to schedule oral arguments as early as March, meaning the court, which has 90 days to make its rulings, could render a decision in June.

Opponents of Proposition 8 are arguing that the initiative so drastically alters the California Constitution that it amounts to a “revision” and not an “amendment,” and thus requires approval from two-thirds of the state Legislature for ratification.

Minter said the legal question in the case pending before the court is “much bigger” than the question of marriage rights the court resolved with its May decision.

“I think it’s fair to say [it’s] almost a constitutional crisis,” Minter said. “If the court does not agree with our argument and says that [the amendment is] valid, it would actually would be the first time that an initiative has successfully been used to take a right away just from one single group of people.

“The notion of having a constitution that provides those basic ground rules is kind of thrown out the window.”

Minter said the court instructed the state and proponents of Proposition 8 to file briefs by Dec. 19. Responses to these briefs are due Jan. 5.

The California Supreme Court has precedent when it comes to invalidating an amendment on the grounds that it should be considered a revision and not an amendment, Minter said. He noted the court has heard nine similar cases on this issue and in about one-third of those cases decided to invalidate the amendment.

Minter offered several other observations on the situation during the conference call:

• Political analyst David Binder has compiled yet-to-be-released statistics on the vote for Proposition 8 based on ethnicity and found that the percentage of black voters who approved the amendment is smaller than originally thought, Minter said. A CNN exit poll indicated that about 69 percent of black California voters marked “yes” on Proposition 8, but the new data indicates that about 57 percent of black voters approved the amendment, he said. The revised statistic would be similar to what exit polls showed for voting patterns for other ethnicities, such as white and Latino voters.

• Regarding the three lawsuits against Proposition 8 filed by minority ethnic group organizations, women’s groups and religious organizations, Minter said the court has decided “it’s not going to rule on those additional petitions right now” and has asked the groups to file friend of the court briefs that would accompany lawsuits already filed by gay couples and organizations.

• Minter said he did not think that protests and rallies across the country in response to the passage of Proposition 8 would be effective in influencing justices to reject the measure, because the court “really does not pay attention to political pressure or considerations.”

• The National Center for Lesbian Rights received no immediate reports of officials or businesses refusing to recognize the marriages of gay couples that were wed in California before the passage of Proposition 8, but is asking couples that experience such problems to report them, Minter said.