- Is Prop 8 invalid because it is a revision, rather than amendment of the Constitution?
- Does Prop 8 violate the separation of powers doctrine (i.e., does it usurp the role of the Court in protecting minority interests in fundamental equal protection rights)?
- If Prop 8 stands, what is the effect on the marriages that have already occurred?
Interesting that the Court took the initiative to take on the third question, as I don't believe any of the petitions raised it. In the Marriage decision, Justice Kennard wrote a separate concurrence to elaborate on how that decision could be consistent with having previously struck down the "San Francisco marriages" of 2005 as unconstitutional (an opinion she disagreed with). But speaking of Justice Kennard, I'm not sure what to make of the fact that she alone dissented from accepting the petitions, and would have preferred a separate petition to deal with the issue of the pre-Prop 8 marriages. Does that mean that she would have completely dismissed the petitions, or does that merely mean that she thought it inappropriate for the Court to request a hearing on that issue without really having been asked? If the former, that doesn't bode well at all. I'm suspecting it's the latter.
In the one other tea leaf to be read, Justice Moreno alone would have granted the stay of enforcement.
One last bright note, the Court denied the request of the Campaign for California Families to intervene. CCF President Randy Thomasson is the guy who tried to put up an even harsher ballot initiative that would have tossed out domestic partnerships as well. Only the original Prop 8 proponents will be allowed to intervene.
Briefs are due in January, and oral arguments could be heard as early as next March under an expedited schedule.