The justice who may decide Prop 8

November 25, 8:34 PMSF Politics ExaminerArthur Bruzzone

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Justice Kennard, California Supreme Court

Justice Joyce Kennard strongly supported overturning Prop 22.  However, Justice Kennard dissented in hearing the constitutionality of Prop 8.  “She doesn’t think it is worth reviewing”, said UC Berkeley Law Professor Jesse H. Choper.

In her dissent,she left open a review “an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.”

For those hoping that Prop 8 will be viewed as a revision and not an amendment of the California Constitution, and thus ruled unconstitutional,  Justice Kennard’s dissent is not good news. 

Consider this: In the most forceful terms, Kennard earlier made clear in her support for overturning Prop 22 that only the judicial branch can determine the constitutionality of same-sex marriages. According to her(Page 126) , it “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,” Kennard wrote. 

Also keep in mind that the overturning of Prop 22, allowing same-sex marriages, resulted from a 4-3 decision. 

Los Angeles Times writer Maura Dolan wrote “although it is impossible to know Kennard's thinking -- justices cannot comment on pending cases -- others saw reason to suspect that Kennard may not be buying the argument that Proposition 8 was an improper revision of the state constitution.”

But the constitutionality question won’t end the debate protests and question.

If Prop 8 stands, gay marriage backers plan to put their own measure before voters perhaps as soon as 2010 to re-amend the state Constitution to allow the marriages.

If the justices toss out Proposition 8, some gay-marriage opponents have talked of putting something on the ballot themselves, either to again ban gay marriage or to oust Supreme Court justices or both.