Family Law

The California Supreme Court heard a three hour argument in Strauss v. Horton, the challenge to Proposition 8's constitutionality.   We've previously blogged about the issues here and here, including a report of the two panels held at AALS in San Diego in early January.

One of the best recaps of the argument I've read so far has been from Josh Richman of the Oakland Tribune on [San Jose] mercurynews.com here.   The National Center for Lesbian Rights had a blog with minute-by-minute descriptions of the argument starting here.  The California Channel should have streaming video here, but I?ve found it difficult to access.

The California Supreme Court described the three issues it would hear in today's oral argument as:

        (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

        (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 issue of whether Proposition 8 is an amendment (and thus a referendum is proper) or a revision (and thus requiring 2/3 vote of the California legislature, or a constitutional convention) implicates one?s views of the right at stake.   According to the NCLR argument blogger, Chief Justice George ?immediately? asked Shannon Minter, arguing for NCLR, whether Proposition 8 overturned the court?s holding in In re Marriage Cases that Sexual orientation was subject to strict scrutiny; Justice Wergerder then followed with a question assuming that if strict scrutiny was not affected, why was Proposition 8 significant enough to be a revision.   Minter?s answer referred to the ?existing purposes and principles? of the California Constitution.  Of course, it is these very purposes and principles about which the parties - - -  and the thousands of activists on both sides of this issue - - - so vehemently disagree.

Please click here for the balance of the article from the Constitutional Law Professor Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.