No Prop 8 Decision This Week

Huh (0.00 / 0)

You're predicting it's overturned?  Any particular reasons?  I'd love it if it was, but it seems kind unlikely...

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by: djcapelis @ Wed May 20, 2009 at 19:06:24 PM UTC

I'm an optimistic romantic (0.00 / 0)

Yes, I am predicting that it will be overturned.  My legal reasoning is described in excruciatingly boring detail here.

I must admit that the oral argument does not inspire confidence in my prediction.  But I have seen plenty of CA Supreme Court cases where the oral argument tea leaves were dead wrong.   Also, the mood in the country as a whole has shifted tremendously in favor of marriage equality in just the two and a half months since oral argument took place.

At bottom, this is an issue of judicial courage.  The law clearly supports overturning Prop 8.  It is, therefore, a political question.  The politics here are rooted in California's system that requires a justice to stand for election every 12 years and the history of the right-wing conservatives to challenge supreme court judges who disagree with their view of social order.

So let's say that I'm optimistic for a good result, but prepared to hit the streets and take this to the ballot box in 2010 if justice is denied.

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by: Be_Devine @ Wed May 20, 2009 at 19:51:58 PM UTC

[ Parent ]

But what about... (0.00 / 0)

the right-wing's threats to recall any justice that votes to overturn Prop. 8?  If we don't counter that, I'm worried that may influence their decision.

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by: BruinKid @ Wed May 20, 2009 at 21:30:16 PM UTC

[ Parent ]

Spot on (6.50 / 2)

You've hit on what's really driving the decision.  Either four of the justices have the courage to do what's right, or Prop 8 will be upheld.

A recall would be a really tough battle for the right wingers to win.  First, they would have to collect a million signatures just to put it on the ballot.  Then, they would have to convince just about every single person who voted "yes" on Prop 8 to remove the judge for not upholding the proposition.  This seems like an incredibly high hurdle.  People generally don't like to remove judges. And I'm pretty sure that the Mormon church isn't going to deal with the outrage that would occur if it funneled money into the state to remove one of our judges.  So fundraising on the recall side would be tough.

Even if it was feasible, a recall likely would be a Phyrric victory for the right wingers.  Keep in mind that six of the seven justices are Republican appointments.  Depending on when the recall election happens, the recalled justice would be replaced either by Schwarzenneger or the new governor.  Schwarzenneger isn't likely to do the bidding of the social conservatives.  And the prospect of having the right wing spend millions of dollars to have a Republican justice replaced by a Democratic justice . . .  Bring it!

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by: Be_Devine @ Wed May 20, 2009 at 21:59:51 PM UTC

[ Parent ]

Our courage supplies seem to be replenished lately, what with Iowa, VT, ME, and perhaps NH. (5.00 / 1)

People mention Rose Bird all the time in the context of this case, but we are in quite a different world these days.  A recall would be a very hard sell.  

Plus, if the Justices had the courage to rule last year in favor of equality, how would they suddenly become craven cowards?  I am somewhat offended on their behalf every time I hear people suggest that they would never overturn 8 lest they be recalled.  

I can see them exercising undue caution and going into contortions so as not to appear to be legislating from the bench, but they have plenty of legal cover to invalidate 8, and as I see it, they gave themselves more last year:  They knew when "In Re: Marriage Cases" was issued that an initative was circulating and would almost certainly make the ballot, and every time I reread that decision I am struck again by how it anticipates and rejects any attempt at whittling away equal protection.  

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by: chiefscribe @ Thu May 21, 2009 at 00:39:07 AM UTC

[ Parent ]

My prediction is that you're right, OR... (0.00 / 0)

I could imagine the Court saying, OK, no marriage for teh gays, but we still can't violate equal protection, AND we have already ruled that the name "marriage" is a key part of this fundamental right and that sexual orientation is a suspect classification, so legislators, fix this so that every couple in the state gets the identical recognition with an identically named license.  

That would almost be sweeter, since it would turn the fundies' argument on its head ("OK, you want the word 'marriage', keep it in your churches, but no hetero couples are getting state-issued marriage licenses anymore either.  HA ha!") and give the Congress a huge reason to repeal DOMA ASAP.  

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by: chiefscribe @ Wed May 20, 2009 at 19:39:57 PM UTC

Not likely (5.00 / 1)

If the Court upholds Prop 8 in this case, what you describe might be the next step.  But your theory is not among the issues that were raised by the Petitions, among the questions that the Supreme Court certified, or among the issues briefed and argued by the parties.  

It's not impossible for the Court to invent a theory on it's own to reach a result that neither party has requested or argued.  But such a result is exceedingly unlikely.

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by: Be_Devine @ Wed May 20, 2009 at 20:02:51 PM UTC

[ Parent ]

OK, then, I think they'll overturn it. (0.00 / 0)

They may not like that they have to go into somewhat uncharted territory on the revision/amendment issue, but they do, because (as even Justice Corrigan, the well known closet case, noted) nobody has ever tried to use the constitution to strip away fundamental rights from a protected minority, so to that extent, this is a case of first impression.  

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by: chiefscribe @ Thu May 21, 2009 at 00:28:19 AM UTC

[ Parent ]

Actually, not quite. (5.00 / 1)

Romer v. Evans is a case I expect to be thoroughly cited no matter how they decide.

In relevant part:

On November 3, 1992, Colorado voters, with a vote of 53.4 percent, enacted "Amendment 2", which read:

Neither the state of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

The law was challenged in Colorado courts - the Colorado Supreme Court held that it violated the US Constitution, thus creating a federal question allowing appeal to the US court system, and it wound up in the Supreme Court.

The case was argued on October 10, 1995. On May 20, 1996, the court ruled 6-3 that Colorado's Amendment 2 was unconstitutional, though on different reasoning than the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Rejecting the state's argument that Amendment 2 merely blocked gay people from receiving "special rights", Kennedy wrote:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

It's obviously distinguishable from Proposition 8, but the precedent is there, and they can stand behind Colorado in terms of a state supreme court throwing out a law like this.

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by: auron renouille @ Thu May 21, 2009 at 05:48:56 AM UTC

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How many justices are married? (0.00 / 0)

Something tells me that the line, "honey, I'm going to have the state change our marriage license to a "parriage" license!" wouldn't play too well with the justices' families.

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by: mediaptera @ Thu May 21, 2009 at 08:13:03 AM UTC

[ Parent ]

Don't get your hopes up (0.00 / 0)

1. I'm betting on 5-2 upholding Prop 8 but 5-2 (with 3 overlapping) upholding the existing marriages.  The 2 always voting for Marriage Equality will be Moreno and Werdegar, the three splitting will be Corrigan, Kennard, and George, and the two always voting for only Opposite Marriage will be Chin and Baxter.

2. Nobody will be gathering signatures for a recall.  George and Moreno are up for retention votes in November 2010, and if they both vote to overturn Prop 8, they will be challenged.

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by: MikeD @ Thu May 21, 2009 at 13:57:33 PM UTC

I love Supreme Court predictin'! (5.00 / 1)

There certainly is good evidence to support your prediction, but I hope you're wrong.

I put Moreno in the pro-equality camp and have Kennard as being the swing vote who needs convincing.  You, like many, put Kennard on the side upholding Prop 8.  I understand your reasoning, and it certainly has strength.  She was pretty tough on the marriage equality side during oral argument.  But she did say in In re Marriage:

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. 

This goes directly to the Separation of Powers argument, an independent basis to invalidate Prop 8 from the amend/revise theory.  It would be tough to reconcile this opinion with a decision saying that the people, by popular vote, can strip the judiciary of its power to enforce equal protection.  So I don't give up on Kennard just because she asked some tough questions.

You're right that George is standing for a retention election in 2010, but you are wrong about Moreno.  He last stood for election in 2002 and will not stand again until 2014.  The fact that Moreno will not stand for a retention election for another five years will, in my opinion, give Moreno the courage to stand up for what he knows is right.  That's why I put him firmly in the pro-equality camp.

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by: Be_Devine @ Thu May 21, 2009 at 15:29:12 PM UTC

[ Parent ]

Retention Vote Years (0.00 / 0)

First, I don't think Moreno's retention vote year matters to him.  He's pretty strong on this issue so I don't think he'd be worried about being voted out; I think he would do what he thinks is right.  Also, now apparently favored by Obama, if it looked like he could be voted down, he might get an escape to the 9th Circuit or back to the Southern District (federal courts with lifetime appointments).

Second, Moreno is up for a vote in 2010 because he was appointed to fill Stanley Mosk's term (yes, the Stanley Mosk appointed to the CA Supreme Court in 1964 by Pat Brown).  So Moreno was up for an initial vote in 2002 because he was just appointed, but then he comes up again when Mosk's term would have come up, which is 2010.

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by: MikeD @ Fri May 22, 2009 at 00:28:15 AM UTC

[ Parent ]

Prop 8 and existing marriages (5.00 / 1)

Upholding Prop 8 would be a wrong result, but upholding it while allowing the state to continue recognizing existing marriages would be lawless.  The clear intent of Prop 8 was to prevent the state from recognizing such marriages -- past, present and future.  The plain wording of the proposition is that only marriage between a man and a woman is "valid or recognized" in California.  It doesn't say, "except for those that already exist."  If the court upholds Prop 8 while permitting the state to continue recognizing existing marriages, it will be changing the meaning of the proposition after it has been voted on.  And while that may be politically popular, it is an outcome that can only be reached by the court stepping outside its judicial role, and exerting power as a super-legislature.

Prop 8 should be invalidated because taking away fundamental rights (which the court in the Marriage Cases declared marriage to be) is a revision, not an amendment, of the constitution.  Indeed, if the Court believes what it said only last year in the Marriage Cases, it almost has to reach this conclusion.  But if they uphold Prop 8, they shouldn't try to make that harsh result seem softer by allowing the state to recognize existing marriages, in violation of the plain meaning of Prop 8.  if they uphold it, they need to own it.

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by: DavidT @ Thu May 21, 2009 at 15:41:18 PM UTC

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Reluctantly agree (5.00 / 1)

Being one of the thousands of people who was married before Prop 8, I really hate to agree with you, but you're right.  For all the reasons you mention, it would be illogical for the court to uphold Prop 8 while, at the same time, holding that same-sex marriages entered into before November 2008 are still valid and recognized.

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by: Be_Devine @ Thu May 21, 2009 at 15:51:53 PM UTC

[ Parent ]

2010 (4.00 / 1)

If they do uphold Prop 8, I am very sure the voters will correct that at the next opportunity.  Equality is happening, regardless of what the court does this week or next.  The Danish have a saying, "Atterdag" -- There will be another day.

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by: DavidT @ Thu May 21, 2009 at 16:17:01 PM UTC

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