CALEB GROOS, FindLaw.com

The long-running battle over marriage rights for same sex couples in California has returned to the courthouse. Last May, the California Supreme Court recognized the right of same sex couples to marry. On November 4th, California voters approved Proposition 8, which modifies the California Constitution to recognize marriage only between a man and a woman. Now, the battle continues, with the California Supreme Court set to hear multiple cases asking it to invalidate Proposition 8.

May 15, 2008: California Supreme Court Recognizes Same Sex Marriage Rights

On May 15, 2008, in a case known as In re Marriage Cases, the California Supreme Court held that same sex couples have a right to marry under the California Constitution. At that time, California offered the possibility of domestic partnerships with virtually equal substantive benefits, but California statute defined marriage as being between a man and a woman. The Court held that the right to marry constitutes a fundamental constitutional right which applies equally to same sex couples and which is within the inalienable right to privacy guaranteed by California's Constitution. Under the Court's ruling, California's failure to recognize same sex marriages violated the equal protection clause of the state's Constitution.

The Court's decision took effect on June 16, 2008, when the first same sex marriages recognized by the state of California began being conducted.

November 4, 2008: Proposition 8 to Ban Same Sex Marriage

Prior to the In re Marriage Cases decision, opponents of same sex marriage began the process to amend California's Constitution. California's Constitution can be amended, or its statutes changed, through ballot initiatives which bypass the state legislature. Under this process, proponents of a proposed constitutional amendment can have it qualified for appearance on the ballot by collecting signatures in excess of 8% of the number of voters in the state's previous gubernatorial election. Once on the ballot, a simple majority vote results in passage of the constitutional amendment. On June 2, 2008, Proposition 8 qualified for the general election ballot with more than one million signatures. It appeared on the November ballot, asking California voters whether they wanted to insert the following words into Article I of California's Constitution:

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

Though California's Secretary of State has yet to certify the results of the November 4th election, it appears that Proposition 8 passed by a margin of approximately four percent.

Effect on Marriages between June 16, 2008 and November 4, 2008

Constitutional amendments passed through ballot initiative take effect the day following the election. This left many wondering how the state would treat marriages that occurred between June 16th and the adoption of Proposition 8. However, California's Attorney General, Jerry Brown, who is responsible for representing the state in any challenges to Proposition 8 or its meaning, has taken the position in court filings that marriages conducted prior to Proposition 8's passage would be upheld as valid. Opponents who would challenge this position face the difficult task of showing that they themselves would be harmed by the state's recognition of marriages conducted in the interim period.

Currently, multiple groups and individuals have filed six petitions asking the California Supreme Court to strike down Proposition 8. These challenges argue that the Court must prohibit enactment of the ban on same sex marriage because Proposition 8 was an invalid revision of California's Constitution. They also asked the Court to halt enactment and enforcement of Proposition 8 until its validity is determined. The Court has agreed to take these cases, but denied the requests to halt implementation of Proposition 8 pending resolution as to its validity.

Changes to California's Constitution come in two forms: amendments and revisions. Amendments make changes to the Constitution without substantially altering any of its underlying principles. Revisions, on the other hand, involve changes to the Constitution's underlying principles. Amendments and revisions both require voter approval, but revisions must follow a much more difficult path to get onto the ballot. Under Article XVIII of California's Constitution, amendments can get onto the ballot through direct ballot initiatives and the gathering of signatures, with no legislative action needed. Revisions, on the other hand, require legislative approval before they can be put to voters. Before they make it onto a ballot, revisions must be approved by either two thirds of both houses of the legislature or by a constitutional convention. The logic behind this is that changes to fundamental principles within the Constitution require more discussion and deliberation than allowed by simple majority votes through direct ballot initiatives.

All six challenges argue that Proposition 8 revises (rather than amends) California's Constitution because it fundamentally alters the protections provided by the constitutional right to marriage and to equal protection under the law. They also argue that Proposition 8 violates separation of powers under California's Constitution by giving majority rule, rather than courts of law, the final word on enforcement of constitutionally guaranteed equal protection rights.

California's Attorney General filed a preliminary response on November 17th, asking California's Supreme Court to accept jurisdiction of these cases and address what the state agrees are issues of great public importance. The Attorney General's response asked that the Court leave Proposition 8 in place while the legal challenges are pending. The official proponents of Proposition 8 filed motions to intervene in three of the six cases, as did the group Campaign for California Families.

In an order issued on November 19, 2008, the California Supreme Court agreed to take the cases, but refused to halt implementation of Proposition 8 while the cases are being decided. The Court allowed Proposition 8's official proponents to intervene, but refused to allow Campaign for California Families to intervene.

The Court identified three issues to be argued by the parties:

• Is Proposition 8 an amendment or a revision to California's Constitution?
• Does Proposition 8 violate the separation of powers under the California Constitution?
• If Proposition 8 is constitutional, what effect, if any, would it have on marriages conducted prior to its adoption?

Though Proposition 8 remains in effect until the Court rules on these issues, the fate of same sex marriage rights in California remains unclear.

• Strauss v. Horton: filed by six same sex couples seeking the right to marry, along with the advocacy group Equity California.
• Tyler v. California: filed by one of the plaintiff couples from the In re Marriage Cases, who were married prior to Proposition 8's passage.
• City and County of San Francisco v. Horton: filed by the cities and counties of San Francisco and Los Angeles, along with Santa Clara County.
• Asian Pacific American Legal Center v. Horton: filed by advocates for racial and ethnic minority groups who fear the implication of making key civil rights by popular vote.
• Equal Rights Advocates v. Horton: filed by women's rights advocates who also fear the implication of deciding civil rights by popular vote.
• California Council of Churches v. Horton: filed by an assortment of religious groups who fear that religious discrimination could be written into California's Constitution through popular vote.

The Court's November 19, 2008 Order