November 19, 2008

California Supreme Court To Decide if Propositon 8 is an Unconstitutional Revision of State Constitution

You can find the court's order here. Also to be briefed is whether the proposition violates the separation of powers in the state constitution (as well as the effects of same-sex marriages already performed).

Contrary to Eugene Volokh's suggestion, it does not appear that an argument that the measure violates the federal constitutional guarantee of equal protection is fairly before the court in its review.

It is also noteworthy that the California Supreme Court denied a stay request pending briefing in this case, with only Justice Moreno voting to grant a stay. That is some indication, though not necessarily a very strong one, that the court will vote to uphold Prop. 8 (the reason is that one of the factors in determining the grant of a stay is likelihood of success on the merits).

Posted by Rick Hasen at November 19, 2008 03:13 PM