Historically, the courts have been the last line of resort for citizens whose civil liberties are threatened by their government. One such landmark case, Brown v. Topeka Board of Education, overturned the 1896 decision in Plessy v. Ferguson, which defended segregation on the grounds that the euphemistically titled "separate but equal" provision for public accommodation was, in fact, equal. In the Brown decision, the court landed a swift blow to segregation by ruling that "separate but equal" provisions are "inherently unequal."
Today, the California Supreme Court has the opportunity to also assert its ultimate constitutional role—protecting civil liberties. This judicial function is the single component of our government that, prior to Bush 43, separated our democracy from "democracies" such as Iran and Kenya. The San Francisco Chronicle reports the first positive signs to this effect:
The state Supreme Court plunged back into the same-sex marriage wars Wednesday, agreeing to decide the legality of a ballot measure that repealed the right of gay and lesbian couples to wed in California.
Six months after its momentous ruling that struck down the state's ban on same-sex marriage, the court granted requests by both sponsors and opponents of Proposition 8 to review lawsuits challenging the Nov. 4 initiative.
The vote was 6-1, Justice Joyce Kennard dissenting.
With the court’s decision, the justices agree to take on two challenges to Proposition 8:
- Whether the ballot measure exceeded its legal scope "by allowing a majority to restrict a minority group's rights" and
- Whether "it violates the constitutional separation of powers by limiting judicial authority
In addition, the court seeks to clarify prop 8’s impact on the existing marriages of over 18,000 California couples. Gerry Brown, the states Attorney General, will argue on behalf of prop 8.
The San Francisco Chronicle article warns that, Justice Kennard, the loan dissenter, "could spell trouble for opponents of Prop. 8." According to the report:
Kennard is the court's longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples' rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.
"It's always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn't warrant review," said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.
Here’s to hoping that the California Supreme Court takes the side of equal protection under the law. Please see the Chronicle’s report for more information.