The California Supreme Court agreed Wed-nesday to consider whether Proposition 8 improperly revised the state constitution, but it refused requests to allow same-sex marriages to resume pending a ruling.
By voting 6-1 to review three lawsuits challenging the marriage ban that voters approved Nov. 4, the state's highest court once again finds itself in the middle of a controversy that began when it sanctioned gay marriages in May.
At the same time, the court signaled it intends to decide the fate of more than 18,000 same-sex weddings that were performed in the past five months.
After its weekly closed session, where the court decides which cases to consider, the justices asked parties in the gay marriage cases to submit written arguments by Jan. 21.
The court could hear oral arguments as early as March and would be required to issue a ruling within 90 days, meaning a decision could come before June.
Both sides in the battle expressed relief the court headed off a protracted legal battle in the lower state courts that could have taken years to resolve.
"We're pleased the court has agreed to take the case," said Shannon Minter, an attorney for the National Center for Lesbian Rights. "If (it) had not, we would have been looking at two to three years of litigation and legal limbo."
Andrew Pugno, an attorney for the Yes on 8 campaign, said the court's "order does not tell us anything about how the (justices) will rule."
"But we're glad the court did take the case and fast-track it," Pugno said. "We think that will go a long way toward reaching finality as soon as possible."
Erwin Chemerinsky, dean of the UC Irvine School of Law, called the court's decision to hear the cases "quite predictable."
"I think there are major legal issues here," Chemerinsky said, including whether Proposition 8 amended or revised the state constitution and whether existing same-sex marriages should be recognized.
Opponents contend the initiative process was improperly used because only the Legislature can place a measure before voters that radically revises – not simply amends – the state constitution.
Supporters of the measure contend the 14-word measure – which stated "Only marriage between a man and a woman is valid and recognized in California" – was clearly an amendment.
They also disagree with state Attorney General Jerry Brown, who maintains that same-sex marriages performed before the election are valid because the measure did not state it was retroactive.
The court agreed to review the three lawsuits, which were filed by two groups of same-sex couples, a gay rights organization and local governments including San Francisco and Los Angeles.
Six justices – Chief Justice Ronald George, Justice Marvin Baxter, Justice Kathryn Werdegar, Justice Ming Chin, Justice Carlos Moreno and Justice Carol Corrigan – signed the court's order.
But Moreno indicated that he would have avoided implementing Proposition 8 pending resolution of the matter. Justice Joyce Kennard cast the lone dissenting vote.
Elizabeth Gill, a staff attorney with the ACLU of Northern California, said she would have preferred that the court allow gay marriages until the issue is decided.
"But because the justices did open (the case) up for new questions, it's hard to know what they're thinking," Gill said.
The court asked lawyers to argue three issues:
• Whether Proposition 8 is invalid because it constitutes a revision of, rather than an amendment to, the California Constitution.
• Whether it violates the separation of powers doctrine under the state constitution.
• If Proposition 8 is not unconstitutional, what its effect is, if any, on the marriages of same-sex couples performed before the measure passed.
"I was surprised that they took this question up at the same time," Chemerinsky said.
Proposition 8's passage, 52.5 percent to 47.5 percent, has ignited protests nationwide. Whatever the court's decision, it will leave some people unhappy.
Pastor Wayne Sheppard of St. Matthew Baptist Church in Sacramento said the court is not the highest authority on same-sex marriage.
"Even if the law of the land changes and it says it's OK to do it, I still have to do what the Bible says," Sheppard said, adding that it states marriage is between a man and woman.
But Sacramento community activist Tina Reynolds said she is pleased the court took up the issue.
Until "there is full equity under the constitution," she said, supporters of gay marriage will keep rallying.
Call Aurelio Rojas, Bee Capitol Bureau, (916) 326-5545. The Bee's Ed Fletcher contributed to this report.
