| Crossposted at Daily Kos
The oral arguments in the effort to overturn Prop 8 ended about a half hour ago, and the hearing has made some things clear, even though final outcome remains uncertain.
Queerty has a good overview of the seven justices that will decide the case and their general political leanings. Much of this was confirmed by what I could see in the oral arguments.
There seem to be two main questions at play here. First, will Prop 8 be upheld? Based on the arguments I would tentatively posit the court will rule this way:
Overturn: George, Moreno, Werdegar
Uphold: Baxter, Chin, Kennard
Kennard ruled with the majority last May on the marriage cases, but as the day went on it became clear she does not buy the "Prop 8 was a revision, not an amendment" argument. In the most interesting and important exchange of the day, which came right at the end, Justice Kennard and Therese Stewart, Deputy City Attorney of San Francisco, debated this topic.
Kennard argued that the people of California had an inalienable right to amend the Constitution. Stewart countered that such an approach would essentially declare open season on the Constitution, that it would eliminate any limitation on changing basic rights in the Constitution.
That refers to an earlier exchange Chief Justice Ron George and Ken Starr had, where Starr basically said that the people should have the power to abolish free speech and ban interracial marriage. Although I have Kennard listed as a possible "uphold" I think she could possibly flip to "overturn" if she realizes that upholding Prop 8 would open the door to all kinds of horrendous and hateful things.
To a US historian and political science teacher like myself, it seems extremely clear that the authors of both the US and California constitutions intended to limit what the people could do. We do not live in, and have never lived in, a state or a nation where democratic power is total and absolute. The power of the people has always been limited and the Federalist Papers are full of fears of mob rule.
One hopes that either Justice Kennard or Corrigan will see that embracing Ken Starr's position is to embrace an attack on the state bill of rights itself and the concept of "fundamental" or "inalienable" rights.
The other issue is what to do with the 18,000 same-sex marriages that were performed in 2008. Ken Starr argued that the voters knew they would be invalidated because he said so in the voter guide. The justices called bullshit on that, with Chief Justice George strongly implying that the Yes on 8 side misled voters by being vague on this question. Justices Kennard and Corrigan both seemed to agree, and I think it's highly likely that those marriages will be upheld.
Some other interesting outcomes:
• Justice Ming Chin, a right-winger, implied that maybe the answer is to get the state out of the marriage business altogether. Look for that to become an increasingly popular concept, especially if Prop 8 is upheld.
• Several justices, including Chief Justice George, strongly implied that they think the constitution is too easily amended and that there needs to be some order brought to that part of the initiative process.
Finally, putting on my Courage Campaign hat (where I work as Public Policy Director), we have had the extreme good fortune to have Sean Penn, Cleve Jones, Dustin Lance Black, Gus Van Sant, and the producers of Milk Bruce Cohen and Dan Jinks sign a letter to our members asking them to help build a grassroots army to restore marriage equality. You can see the full email over the flip. It's a great moment of collaboration between filmmakers, online organizers, and marriage equality activists of all stripes.