Constant Readers,
Oh boy, do I have some gossip for y'all! I heard from a pretty damn good source that a decision on the Prop 8 case will come down this Thursday!
There are only 2 weeks until the June 3 deadline, so a decision will be coming soon even if the scuttlebutt ain't true.
What will happen?
At oral arguments, I'll admit that things were not looking great for proponents of same-sex marriage. Ken Starr did a great job arguing that Prop 8 is legitimate and Jerry Brown sent a buffoon to argue one of the most compelling arguments for shooting down Prop 8.
But while one can never be 100% sure, I believe that Prop 8 will be declared unconstitutional. And it will be along the same voting line as the In Re Marriage Cases (IRMC) decision. [172-page decision here: Download Supreme Court Opinion.]
Here's why...
Remember that California voters passed Prop 22 back in 2000, which added language to the California Family Code declaring that only Opposite Marriage is ok in this state. That language was eliminated from our code by the IRMC decision.
In IRMC, the Court found that there was a conflict between Prop 22 and the equal protection clause of the State Constitution - and the State Constitution always beats a regular ol' law. Prop 8 put the Opposite Marriage language IN the Constitution, and the winner between the internally conflicting provisions is less clear.
Despite this difference, Prop 22 and Prop 8 both require a hard look at the "will of the people" versus the equal protection clause of the State Constitution. That is why the IRMC decision is informative: how the Justices viewed voter intent to pass Prop 22 can shed light on how they'll look at Prop 8.
A few preliminary issues:
1) Background on the basic legal issues of the Prop 8 case is here and an essay describing the basics of the IRMC decision is here. I'll try not to repeat too much.
2) I won't be addressing retroactivity in this post. I already did a podcast discussing the reasons why same-sex marriages performed last year between June and November are probably safe.
Let's begin.
The California State Supreme Court has 7 Justices (don't call them "Judges"!) so the side that can get 4 votes wins.
Justices Baxter and Chin voted against same-sex marriage in the IRMC case and at oral argument on March 5, 2009 neither seemed interested in changing their minds when it comes to Prop 8.
Note that Chin kept asking about whether we could get rid of the term "marriage" altogether and just declare same and opposite marriages "civil unions."
Justices Moreno and Werdegar voted in favor of same-sex marriage in the IRMC case and at oral argument, appeared supportive of it again this time.
So, we got 2-2.
As for the other 3...
Justice Corrigan: Asked a number of insightful questions at oral arguments which led some pundits to believe that she might actually vote to strike down Prop 8. I don't buy that. Check out these quotes from her IRMC decision:
The voters who passed Proposition 22 not long ago decided to keep the meaning of marriage as it has always been understood in California. The majority improperly infringes on the prerogative of the voters by overriding their decision.
If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.
Don't look for her to change her position. She'll likely vote to uphold Prop 8.
Justice Kennard: Was hard on the same-sex marriage proponents. No question. But you can't just rely on that. For example, sometimes judges are tougher on the side they support because they want to make sure their own reasoning is sound.
She repeated a few times that, just because she was in favor of gay marriage in the IRMC decision doesn't mean she'll go for it in the Prop 8 case.
This scared a lot of people. But I went back and listened to the IRMC oral arguments and Kennard corrected a pro-gay-marriage attorney in that case who tried to say he knew how the Justices were going to vote. I think she just has a peeve against people making assumptions about how she'll rule.
Frankly, I would be very surprised if Kennard rules against gay marriage.
Exhibit A: Remember in 2004, when Mistermayor ordered the County Clerk to marry same-sex couples because he thought the law banning same-sex marriage was unconstitutional? And the State Supreme Court said, "Uh, WE are the deciders of what laws are constitutional. Not you. Those marriages from 2004 are null and void because they were performed before we said same-sex marriage is ok." That was the Lockyer case. Guess who argued that those marriages from 2004 should be recognized (not nullified)? Justice Kennard.
Exhibit B: In the IRMC decision, Kennard fully signed on with the majority, but wrote a whole separate decision where she addressed the issue of judicial power and responsibility. Here are some excerpts:
The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.
Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government.
Indeed, this court’s decision in Lockyer made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution’s equal protection guarantee.
Granted (as I wrote above) Prop 8 doesn't present exactly the same issue, but I think Kennard will continue to demonstrate an interest in protecting the fundamental rights of minorities by deciding that Prop 8 is unconstitutional.
Chief Justice George: Is harder to read than the others. At oral arguments, he started down the road that taking away the word "marriage" was just a small change - and thus an amendment (which is ok) - not a revision (which is not ok). But then Ken Starr got up to argue against gay marriage and basically said: no change to rights is ever a revision. (Only changes to government processes are revisions - things like getting rid of courts or the legislature.)
And George was all: Seriously? A majority of voters can take away any minority's rights and it's always constitutional?
Yep.
At that point, it looked like George lost faith in Starr's argument.
Remember too, that George wrote (okay, his clerks wrote) the majority opinion in the IRMC decision. Some excerpts on the "majority rule" issue:
Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute — having been adopted through the initiative process — represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process.
As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Given the above, I think he'll vote against Prop 8.
That puts us at 3 in favor of Prop 8 (Baxter, Chin, Corrigan) and 4 against (George, Kennard, Moreno, Werdegar). Same as the IRMC decision.
Admittedly, there is no way to know what will happen in the Court's forthcoming decision.
But there is reason to hope.
--Melissa
Comments
You are probably right about Corrigan, but let's not jump to conclusions based on what she wrote in In Re Marriage. That quote you cited contains important language: "This court can overrule a vote of the people only IF THE CONSTITUTION COMPELS US TO DO SO. HERE, the Constitution does not." [emphasis mine]. Prop. 8 is about a COMPLETELY different constitutional provision that Prop. 22 was about, namely the difference between revision and amendment. Justice Corrigan's declining to conclude that same-sex marriage is an implied constitutional right does not necessarily lead to the conclusion that she would conclude that a simple majority can take away other constitutionally obvious fundamental rights, including equal protection, by initiative amendment, which would be the result of a decision upholding Prop. 8. This may be a case where Corrigan would hold that the Constitution DOES compel the court to strike down the majority's will.
oh wow...
This is the first real in depth analysis of whether Prop 8 will be stricken down or not that I've ever seen! Thanks!
The whole world is unhappy, since the Homosexuals took the word "Gay" away from it. Wait!, wasn't the world unhappy before that happened?
@John K - You are certainly right. The way the three Justice at issue here will vote is impossible to know and there's a good chance I'm wrong about any (or all) of these predictions. My point is that Corrigan's statements demonstrate a deference to voters. Though she might decide that this is the moment to deviate from that. Thank you for writing!
@Jono - I'm very glad you found it useful!
"Note that Chin kept asking about whether we could get rid of the term "marriage" altogether and just declare same and opposite marriages "civil unions.""
Actually, I think Chin is right: "marriage" is such a religiously and emotionally loaded term that it should be kept out of government or politics. The government should create a legal framework for two people to enter into a union and it should otherwise keep out of their relationship.
(Incidentally, that also holds for immigration cases; instead of counting toothbrushes and asking intimate questions, marriage for immigration purposes should simply be defined in terms of obligations and liabilities that the American partner assumes for the foreign partner, no more and no less.)
I think letting Prop 8 stand would set a dangerous precedent because it means that 50% of the voters can take away the rights of any minority they choose. Catholics and Mormons should be sensitive to that: they used to be hated minorities.
On the other hand, having the right to marry come in through a court decision is disappointing. Given the choice, I'd rather have another vote, this time without millions of dollars from the coffers of the Catholics and Mormon churches.
""marriage" is such a religiously and emotionally loaded term that it should be kept out of government or politics. The government should create a legal framework for two people to enter into a union and it should otherwise keep out of their relationship."
One problem with that is that the word "marriage" is used in civil law. Can think of at least three areas off the top of my head: real estate, family, and probate.
I think Kennard will vote to uphold prop 8. I think that was clear from the moment she dissented in wanting to even hear the arguments (outside of the question of the legality of the existing marriages) to begin with. I'm not totally convinced that Corrigan or even Chin are sure to uphold it though.
Melissa:
Did actually WATCH the arguments before the Supreme Court in March? There is NO way that Kennard is going to vote to strike down prop 8.
She is the one who asked if the court should have the right to overrule the right of the people to amend the constitution "willy nilly" at the court's whim.
She was the only justice who actually voted not to even hear the challenge to Prop 8 -- signifying that she considered it settled--but was only interested in hearing the challenge to the marriages that had already been performed. Kennard is going to rule to uphold Prop 8. I will lay money on it. I don't think George is going to overturn it either. At most, we will get 2 votes to overturn Prop 8.
I hope I am wrong and you are right, but nearly everyone who watched the proceedings--including the vast majority of the experts-- agrees with me.
correction: My post should read "Did you actually watch..."
Yes thank you for the analysis. While I think the Court will uphold Prop 8, I think they are wrong to do so. Yes, Californians have a right to modify their Constitution. But, they can't do it to discriminate which Prop 8 does. I don't understand how the justices can turn a blind eye to flagrant discrimination and injustice. If you substitute any minority group in place of gay, i.e., blacks, asians, how does this not differ from past court ruling to declare denial of marriage rights based on race unconstitutional?
That individual rights could be granted and taken away so "willy nilly" is a travesty of justice.
@Jeffrey - I most certainly did watch the arguments and have listened to them about a dozen times when creating the podcasts I put up afterward. Her "performance" aside, striking down gay marriage would not be consistent with her prior rulings. As for her vote not to hear the case, she did not elaborate and thus could have simply wanted it to start at the Superior Court level. Hard to extrapolate from that.
As the post stated, I think there is reason to have hope, and don't pretend to be 100% sure. That is all. We can certainly agree to disagree on that.
Melissa, thank you so very much for all of the time and effort you spent in presenting this analysis for all of us legal "laypeople". I remain hopeful that the California Supreme Court will rule in favor of justice and marriage equality.
Your work has strengthened this hope!
Thank you!!!!!
Melissa, thanks for the well-reasoned prediction. All along I wondered why the "analysts" were so quick to assume the justices would change thier positions. The bottom line is they once voted to over-turn the ban, and it would be consistant, as you explain, to expect the same.
Hopefully your source is right about the timing.
While I seriously hope you are right, Melissa, I doubt it very much. While the Chief justice MIGHT vote to overturn Prop 8, I have to say that I feel that in your fervent hope to see Prop 8 defeated, you dismiss or explain away anything that would cast doubt on the desired end result.
Now don't get me wrong, I think that Prop 8 was a travesty. There is something seriously wrong with the idea that the courts, whose job in a constitutional democracy is to protect minorities from being completely trampled by the majority, can be circumvented by a pathetic simple majority vote. The very idea strikes me as counter intuitive, and worse yet, incredibly dangerous. However, given that these justices face retention elections, one of the things I observed is that they didn't seem to be displaying much courage this time.
Supreme Courts don't follow precedent; they set it. And yet, over and over during oral arguments, they kept seeking judicial precedent to support the arguments being advanced by opponents of Prop 8. The bottom line is that they don't need precedent. If those 7 justices think that Prop 8 was passed illegally, then all they need is to say so. Yet over and over, they displayed a remarkable hesitance to move in that direction.
There is a bright side. Oral arguments are mostly theater, and while they provide some insight, they're hardly a strong indicator. 90% of what happens is done through the briefs filed by both sides. Oral arguments are time constrained and only cover a small slice of those briefs, so there is plenty more there for the justices to look at.
Now, while I am much more pessimistic (I expect the court to uphold Prop 8 by a 5-2 vote), the fact that they've taken this long could indicate that the court is more closely divided. We have to remember that these justices don't live in a vacuum. The world has continued moving along since oral arguments. A number of states have legislated marriage equality. Further, the Iowa Supreme Court ruling that called for marriage equality heavily referenced the California Supreme Court decision. More and more, the California decision is being looked at as a watershed moment in American jurisprudence. I wonder if the California Supremes are really willing to see their ruling chucked unceremoniously into the dustbin. Six and a half months removed from Prop 8's passage, perhaps Chief Justice George and Justice Kennard will indeed be more willing to take a stand against the precedent that Prop 8, if permitted to stand, might set, namely that a simple majority of voters have the right to strip away civil rights from Blacks, Asians, Latinos, women, the disabled, or any other identifiable group.
I have much more to say on this subject, but I'm going to hold off until I see what happens tomorrow.
Multiple sources have confirmed that the clerk of the court has NOT published a notice of forthcoming opinion regarding Proposition 8. Melissa, your unverified item has been picked up and has spread all over the net.
Check your sources, next time. Don't spread unfounded rumors. We don't need any more of them online than there already are.
I have read the May 2008 California Supreme Court decision when the court ruled in favor of Gay Marriage. The court at that time found that marriage was a "Fundamental Right" and denying a minority group to be disenfranchised from marriage violated the Equal Protection clause of the Constitution. I am an attorney and I really am baffled by the Court. Clearly, if a ballot initiative changes a Fundamental Right i.e.. Gay Marriage how can the Court find that Prop 8's change to the Constitution is not a Fundamental change. In order to change the Constitution in a fundamental way The proposed change requires the legislature to first vote on the matter and the vote must be 2/3 of both houses, then the people vote and that vote also must be 2/3 of the vote.
Frankly, if the Court does not find this a Fundamental change we can start voting on ballots that take away rights from any group unless explicitly protected by the US constitution and Federal Law. For example we could get ballot initiatives that say:California does not recognize Mormons as a religion, No one over 50 can get married (because after all the couple could not procreate) People that have been convicted of Felony cannot get married. The list could go on and on. The Supreme Court would set a terrible precedent. The Court would be saying that a majority of people can vote on virtually anything including Fundamental Rights guaranteed by Equal Protection. Just a mere majority can start taking away everybody's rights! People should be very worried about their own rights. Just as Gay Marriage was taken away by a majority vote your rights can also be voted away by a majority vote.
Remember, up until now constitutional Amendments expanded rights. In addition, such a serious matter as taking away a Fundamental Right should never be allowed to be achieved by a mere majority. The constitution was written to protect minority groups from the will of the Majority. This would be a very bad decision.
Last Year the California Supreme Court struck down a law (voted by a Proposition) which defined marriage as a union between a man and a women. The court found this definition was unconstitutional because it violated the Equal Protection clause of the California Constitution. I really do not understand how the Court could affirm 8 in light of this decision. Upholding Prop 8 would show the Justices are more concerned with being reelected than doing there jobs upholding the California Constitution. The Court would actually reverse their own decision of one year ago. Such a decision would undermined the court; we could not count on them to be consistent or to protect any minority from majority oppression. The California Supreme Court would be jeopardizing their status in the legal community.
With all this being said I do not feel very optimistic that the court will overturn Prop 8. Firstly, the Court could and should have stopped this ballot initiative before it was allowed to be put on the ballet. Only one Justice found that Pop 8 should not be allowed on the ballet. I find this very troubling because an issue regarding Equal Protection should not have ever made it to the voters. Second, the oral arguments were a disaster. The Court Clearly showed by their questions that they were inclined to uphold Prop 8. The Justices did not seem to buy the argument that Prop 8 was a fundamental change to the California Constitution. (I find this position ludicrious how can denying a Fundamental right to a minority group not be a fundamental change to the California Constitution.)
The only thing I find optimistic is that the Court waited until their deadline to file their ruling. Perhaps the Justices will take into account what is happening all over the country. Perhaps they will look at the Iowa Supreme Court Case and do the right thing. I realize that none of this is legally relevant but lets face it Justices are people and do take these things into account.
We want the gays to riot because civil unions are next and taking away the right to adopt kids. You gays called, civil rights or civil war. Look forward to the blood running in gay SF. The National Guard must be put on alert and Obama must be ready to call the army to siege SF because the gays are ready to die for gay marriage. Lets give them what they want, death instead of them killing us with their mafia or spreading of AID's to our youth.
What a bunch of baloney arguments! Supreme tried to change the constitution by redefining marriage different from the definition at the time of the writing. You need an ammendment to change the constitution. There is no gay marriage ie 18000 socalled marriage window baloney. The gay judges should resign or be recalled. I hope they throw out prop 8 so they can be recalled. The law is the law, not confusion like the above arguments and Brown's.
@leslie militzok: i think you're right. the lawyer representing the general attorney of california argued with same arguments, but he did a lazy job... i think that the amendment vs revision cause is not as strong as the fact that YOU CANNOT TAKE AN INALIENABLE RIGHT through a popular vote.
I sure hope you're right!
@Joey Riso - I very clearly stated that it was a rumor. Most of the rumors on the internet were the result of barricades being put up in the Castro because of the White Night vigils - not me. New rumor is the mayor Newsom asked the court not to issue the ruling because of the auspicious occasion of White Night.
@Sam - I have written about and done multiple stories laying out both side of the legal arguments re: Prop 8. I assure you, I am quite familiar with all the reasons to not be hopeful. The point of this post was clear: to lay out the reasons I believe Prop 8 will be overturned. I do not apologize for not presenting the other side this time.
I think the majority of people miss entirely what they court said in IRMC. They said a separate designation between "marriage" and "domestic partnerships" caused harm to gays and lesbians and did not meet the equal protection guarantee under strict scrutiny. Having found this, the court had two options:
1. extend marriage to gays and lesbians
2. strike the marriage laws entirely.
They felt that extending the term marriage was most consistent with the people's will. Well, the people have
I am optimistic. Just call me crazy. I watched all the legal bantering during the first case where the supremes ruled against the first propositon that barred gays from marriage. The supremes were harsh on the pro-gay marriage side, beating them up one side and down the other, and giving what seemed to be a pass to the other sides' attorneys. I knew we had lost that case. Go back and watch the arguments in 2008 and judge for yourself. So I think that the court is unusually critical to the side t
I am optitmistic. Just call me crazy. I watched all the legal bantering during the first case where the supremes ruled against the first propositon that barred gays from marriage. The supremes were harsh on the pro-gay marriage side, beating them up one side and down the other, and giving what seemed to be a pass to the other sides' attorneys. I knew we had lost that case. Go back and watch the arguments in 2008 and judge for yourself. So I think that the court is unusually critical to the side
Oral arguments are best!
I did an entire radio show on this and took live calls. Most people want prop 8 upheld as its unconstitutional to over turn the will of the people. My show is at blogtalkradio.com/shockawenow
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