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Prop 8 Post-Arguments Open Thread

by: Robert Cruickshank

Thu Mar 05, 2009 at 12:52:29 PM PST

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
Unclear: Corrigan

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.

Robert Cruickshank :: Prop 8 Post-Arguments Open Thread
Dear Robert,

Today is a turning point. And, as Harvey Milk used to say so often, we're "here to recruit you."

A few minutes ago, the California Supreme Court heard the final oral arguments in the case to overturn Proposition 8. Within 90 days, we will know whether the court will restore equal rights or uphold injustice.

No matter what the state Supreme Court decides, the fight for equality will continue in California and across the country.

If we win, the same people who backed Prop 8 will find another way to undermine equal rights. If we lose, we will need to take our case to the people of California again. No matter what, we'll eventually need to win full equality under federal law.

At nearly 700,000 members and growing, the Courage Campaign is building an army to prepare for this fight -- the kind of people-powered movement that Harvey Milk would lead. A movement that proudly portrays -- and tells the stories of -- the people victimized by the discrimination of Prop 8, "Don't Ask, Don't Tell" and the Defense of Marriage Act.

We're here to recruit you. Will you help the Courage Campaign build this movement? Please contribute what you can today to restore marriage equality to California and bring equal rights to America:


Harvey Milk understood the need to organize communities from the bottom-up, the need for gay, lesbian, bi-sexual and transgender people to be out and proud as leaders in this movement, and the need for straight allies to join them in solidarity.

That's why we worked so hard to get the film "Milk" to movie screens across America. We wanted to show a new generation of Americans how Harvey organized to win landmark victories in the fight for equal rights.

Just like Harvey did in 1978 when he led the movement to defeat the "Briggs Initiative," the Courage Campaign is organizing across California to repeal Prop 8 -- training marriage equality activists at "Camp Courage" events, launching Equality Teams county-by-county, and producing online videos like the heartbreaking "Fidelity," viewed by more than 1 million people.

The only way we will win true equality in California and across the country is by giving people the power to do it themselves. And that's what the Courage Campaign is doing. Please contribute what you can afford today to help the Courage Campaign build this people-powered army from the ground up:


Thank you for joining us in supporting the Courage Campaign.

Sean Penn, Gus Van Sant, Dustin Lance Black, Cleve Jones, Bruce Cohen and Dan Jinks
"Milk" Actor, Director, Screenwriter, Historical Consultant and Producers

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bill of rights (0.00 / 0)
Yes, it seemed there was much debate about what was and was not an inalienable right.
It seems basic that the original CA Constitution set forth certain basic liberties that could not be upset or limited. There was confusion about whether the right to amend the constitution was among those.
Clearly, the court can rule that there are inalienable and basic rights that are set out by the people and that are not subject to amendment by future generations. That is the basic safeguard against a tyranny by the majority.
What was also clear, is that the court feels strongly constrained in this case because the prop 8 amendment was done in REACTION to a court ruling on marriage.
Had this been an amendment reacting to law, the court would feel far freer.
This "judicial restraint" appears to be the only stumbling block to a clear declaration that marriage is a liberty that cannot be denied to one particular class.

It is possible that the *vote* (0.00 / 0)
was in reaction to the In Re Marriages case, or more to the point, to the lies that the Yes on 8 campaign told about the case.

But Prop 8 is just the last of a series of almost identical initiatives that the anti-justice industry has been floating for years.  In fact, Proposition 8 was submitted to the Secretary of State for certification before the ruling in In Re Marriages.  It was not a reaction to the case.  The anti-justice industry has wanted this for years.  

[ Parent ]
Exactly (0.00 / 0)
What Ken Starr is really saying here is that they want to blow up judicial protection of the Constitution and of minority rights.

It's a radical attack on Madison's core concepts of American government and on the judicial branch as a whole, which they would prefer to merely arbitrate contracts and nothing else.

You can check out any time you like but you can never leave

[ Parent ]
Lose-Lose (0.00 / 0)
But what if that is how the Constitution is written? We might not like it, but the history of California politics and the text of our Constitution is dominated by radical-democratic ideas about the power of the electorate, and sometimes that goes against what many of us consider social progress.

The argument that other proposition-amendments were just as fundamental (such as the return of capital punishment) is compelling.  I think George will rule against the petition as well, upholding Prop 8 as a legitimate amendment and not revision.  I don't think they'll invalidate, but that will be a long fight as well.

I think the quality of the advocacy will play a key role here as well.  The first lawyer for the petitioner did well, but the SF City and AG's representatives were destroyed.  I think Ken Starr is an a-hole, but he did bring is (insane) A-Game.  

This whole thing is a lose-lose.  If we lose, the CASC enshrines descrimination in our constitution and opens the door for the return of Prop 187-like anti-immigrant amendments.  If we win, we make the Republicans right when they talk about "judges overturning the will of the people" and almost completely destroy the chance of California being the first state to recognize SSM via direct democracy in 2010.  It takes a very effective and distracting wedge issue and wraps it up in a bow for the CA GOP, right when they are playing defense on the budget and Prop 13.


[ Parent ]
Judges are SUPPOSED TO stop the tyranny of the majority (0.00 / 0)
they are the one explicitly countermajoritarian institution in US government.  And these judges are ELECTED.

So I reject your (implicitly Republican) characterization of what it means for judges to determine that Prop 8 is a revision not just an amendment.  Further, in each place that marriage equality has been achieved through judicial action (protecting an unpopular minority -- their job), facts on the ground mean that people accept marriage equality as basically fine and then they move on, leaving the far-right anti-justice industry to wither there.

Not one legislator in Massachusetts who refused to allow a referendum reversing the MA SJC marriage equality decision has lost their seat.  Not one.  I don't think that this backlash narrative has legs.

[ Parent ]
We aren't MA (0.00 / 0)
The Massachusetts example is not informative here.  I think the CA legislature could have either passed SSM or prevented something like Prop 8 with very little impact except in already-republican districts.  The overruling of Prop 187 is also a bad example (that you didn't raise, but others have), since that was a complicated issue that ended up as almost a "tie" in the courts over a multi-year period.

This is a simple issue, that everybody voted on, and the decision will be clear and within the time period where emotions are still running high.  I would love to see a SSM example from another state that matches Prop 8, but I haven't encountered it.

A lot of polls showed that a significant portion of the Pro-Prop 8 vote was very soft in support, and probably could have been swung with better ads or different framing. However, nothing is going to harden the will of the pro voters more than being overturned by the CASC.  This is a pretty natural human reaction and shouldn't just be dismissed as the voters being troglodytes.  

Guy 1: "Hey, what do you two want to get for lunch? Pizza or sandwiches?  I vote strongly for Pizza!"
Guy 2: "I vote strongly for sandwiches!  Pizza hurts families!"
Guy 3: "I don't care that much, but I'll say sandwiches because I like families."
Guy 1: "Trick question, it's Pizza no matter what you say!"

Does Guy 3 eventually admit that the choice of Pizza was better in the long run, or does he sit in the Pizza parlor glowering at Guy 1?  

If Prop 8 is overturned this is going to be an issue for 3-4 election cycles, and it's going to suck oxygen out of the populace's limited attention span for state issues.  Try playing "The 2/3 budget vote is undemocratic" against "Teh Gayz took away your right to vote on important issues" in 2010.  FAIL

Depressing.  Anyway, nothing we can do now.  I really wish Prop 8 had lost or that Prop 8 had been restrained and a decision delayed until after we had another chance to overturn in 2010.

[ Parent ]
And yet (0.00 / 0)
The court overturned a voter-approved initiative last May, and it still took a bare majority to approve Prop 8. The issue of the court's action took a back seat in the campaign to thinly veiled homophobia.

The CA Legislature did in fact pass legalization of same-sex marriage, only to be vetoed by Arnold.

Finally, you can't just unilaterally declare "the MA example is not informative here" without explaining why that's the case.

You can check out any time you like but you can never leave

[ Parent ]
You are making a lot of counterfactual assumptions (0.00 / 0)
based on your assessment of human nature, rather than how people have actually reacted on the same exact issue in other places.  And since your assessments aren't based on what has actually happened elsewhere, but just on your beliefs about human nature, there's not really anything to say, especially when you're reduced to a sandwiches / pizza analogy analogy to the state telling certain people that they're second class citizens in one of the most basic areas of their lives.  I think that says more than I ever could.

As far as this:

I think the CA legislature could have either passed SSM or prevented something like Prop 8 with very little impact except in already-republican districts.

No, no they couldn't have.  Because the existing anti-justice law on the books was the result of an initiative campaign, the only way that the leg could change it would have been by putting another initiative on the ballot.  Our gay-friendly Republican governor kept vetoing the bill, and it would have taken 2/3 of the both houses to override.  Now tell me which Republican legislator would have voted for that, given the composition of their districts? And then it STILL would have had to go before the voters as a Yes campaign (pretty much where we are now).  

[ Parent ]
Whatever (2.00 / 1)
Nice ad-hominem  without any actual argument.  I use an analogy and that makes me a bad person.  Because obviously I really think sandwiches and marriage rights are equivalent.

Show me "how people have actually reacted on the same exact issue in other places."  I directed responded to your Mass example, and I think that isn't indicative because it did not include the overturning of a law passed by direct democracy.

The analogy is apt because the Prop 8 voters don't think they are "telling certain people that they're second class citizens".  A large majority of people support SS couples having civil union benefits, and a small majority voted against SSM.  Somewhere in that mushy middle there are people who are fine with gay couples having legal rights but are caught up on the marriage word.  I think those people can be convinced, hopefully in 2010, and you see them as needing to be crushed by any means necessary.  

Whatever, nothing we say he has any impact.  The die is cast.  Apparently you think that a judicial mandate overturning a slight majority of voters will improve the chances of SSM in the long run.  I think that "victory" is tactical and will hurt SSM and other progressive priorities in CA for a while, until the Republicans find another wedge issue to distract voters while the state falls apart.

BTW, I know the legislative history and that Arnie vetoed.  I was saying that a legislative creation of SSM would be closer to your Mass example and have a lot smaller chance of creating backlash.  

PS Do you feel that a proposition creating a right for SSM would be an amendment or a revision?  How about a proposition restructuring the tax system?

[ Parent ]
Once again, the "backlash" narrative (0.00 / 0)
is a FICTION.  It has never been shown by polling data to be a fact.  There was a lot of crowing about it in 2004, but when people went back and checked the data, it just wasn't there.  Period.

As for "creating a right to SSM", I don't really know what that means.  If you mean, "making it clear that the protections of the constitution apply to gay people as well as straight people", then no, I don't think that's a revision.  Nor would I think that allowing non-whites or non-christians to marry (or vote, or work, or live where they like) is a revision.  But taking those things away once they exist, stripping away equal protection rights?  I think there's a strong case to be made that those things are revisions, because they constitute a change in the underlying principles of our government -- equal protection being one of the most fundamental.

As far as taxes (your bugaboo, IIRC), I have a hard time imagining a taxation system that would constitute a sufficiently drastic change in the fundamental relationship that people have with the state to make it a revision.  But I guess it's possible in theory.

Last, it's pretty clear under your model, that there is NOTHING that 50%+1 can't do to any target group as long as it doesn't cross the line of the federal constitution, which means that the floor for punishing minorities in California is whatever the most regressive 1/4 of the states think is the right model for society.  Judges exist purely to ratify the prejudices of the bare majority.

[ Parent ]
Ok i'm done (0.00 / 0)
You can't keep this from being about me, so enjoy your echo chamber.

We'll know how things turn out in 2010.  We'll either be voting for a pro-SSM Prop or the Super-Mega-Son-Of-Prop-8 that gets rid of the benefits of civil unions as well.  Or both.

[ Parent ]
Look, you can have your opinion (0.00 / 0)
but you're basing it on a set of assumptions about that haven't panned out in reality.  That's the point I'm trying to make here.  There are arguments that Prop 8 is just an amendment.  I tend not to think so, because I think it undermines the fundamental basis of our government to allow the majority to just strip rights away from a minority.  Democracy, even direct democracy, is not the same as mob rule. Those are the arguments on principle that I would be prepared to make.  But you're also making a political argument about why doing the right thing will create a backlash, when that doesn't correlate to what people have seen happen.

If Prop 8 had turned out differently, by the time the anti-justice industry could have put together yet ANOTHER attack on equality, people just would not have cared -- all of the lies that the Yes on 8 campaign told would have been obviously lies, because the parade of horribles they trotted out would not have existed.  The only reasons the lies were remotely plausible is that (a) they were being told by preachers and priests and law professors and (b) the time between the case and the election was so short.  

I also think that your assumption that the majority of the electorate will vote to hurt gay people just to spite dictators in black robes 18 months after the ruling is really mistaken.  Again, NOT ONE pro-equality legislator in MA has lost their seat.  Not one.  Surely at least ONE might have been punished for refusing to let the people have their say.  One.

Last, the Republicans will run against the judges (mostly Republicans, all elected).  Republicans have been doing that for decades.  They're still doing it at the federal level, even though the vast majority of the federal judiciary is Republican-selected.  The political argument in favor of screwing over a minority in order to somehow stop the Republicans from using a talking point they are going to use anyway is both disturbingly amoral and given history, weak.

[As a footnote, please show me where I said that the ambivalent should be "crushed".  Does that somehow mean my rejection of the backlash fiction?  Or that judges refusing to simply ratify the prejudice of 52% of the population against an unpopular minority, based at least in part on lies that were told them is somehow "crushing" people who are kind of ambivalent about this in the first place?  Really?]

[ Parent ]
On rereading (0.00 / 0)
I should make it clear that I don't believe you're arguing this position as a normative matter, but rather just as a descriptive matter:

The political argument in favor of screwing over a minority in order to somehow stop the Republicans from using a talking point they are going to use anyway is both disturbingly amoral and given history, weak.

[ Parent ]
How about a lighter topic? (0.00 / 0)
Nooooo, Sanjaaaaaaaay!  Watch for Fox News pointing at this to prove that Obama's administration is falling apart.  "Obama is obviously deeply unserious about the national security role of the Surgeon GENERAL.  We must not allow for a cigarette warning label gap!"

[ Parent ]
The irony of course (0.00 / 0)
being that the nomination of Dr. Gupta suggested that the Obama Administration was already deeply unserious about the position, except to the extent that it was viewed as "Official Talking Head for Health Matters".

[ Parent ]
Thanks for this summary (0.00 / 0)
I heard part of the arguments this morning, but not everything, so very helpful to start getting a read on where the different justices seem to be heading.  


Archived? (0.00 / 0)
Are the oral arguments archived online?  If so, links appreciated.

[ Parent ]
Cal Channel has it (0.00 / 0)
but their server can't handle the traffic right now.  It may be a while before you're actually able to see it:


[ Parent ]
thanks (0.00 / 0)
fun for the weekend!

[ Parent ]
Uphold (0.00 / 0)
Based on watching the arguments, my current bet would be that the court creates some standard for when changes to fundamental rights become a revision rather than an amendment, and then decide that Prop 8 doesn't meet that standard. Mostly, I base this on the court's negative reaction to Starr's argument that the people could abolish the state freedom of speech by initiative amendment. I'm fairly certain that they wont want to leave that door open, but I'm not optimistic about overturning Prop 8. If that balance is struck, I don't think Chief Justice George will support overturning the proposition.

Yeah, judges at that level can always draw the line (0.00 / 0)
just above where they think it will cause a political problem for them.

[ Parent ]
Uphold (0.00 / 0)
Well said, salamander.  

Sorry to dispute what was said above, but Justice Corrigan is not in the middle.  Reread her dissent in the original marriage case.  Her argument is, in essence, "Gay marriage is here.  Stop the world.  I want to get off."

The three justices who voted against gay marriage in May - Baxter, Chin, and Corrigan - will hold the same position against marriage this time around.  The two who voted in favor - Werdeger and Moreno - will keep theirs as well.  The middle in this case comes down to Justice Kennard and the Chief Justice.

What struck me in today's hearing the most from Justice Kennard was her statement during the hearing that "Prop. 8 did not take away the whole bundle of rights that this court articulated in the marriage case."  Yet she didn't expand on it.  If the so-called bundle of rights were a dinner plate, gay marriage wouldn't be the creamed corn off to the side, it'd be the Porterhouse steak.  That kind of casual, throw away line indicated to me a lack of serious consideration of the arguments made by those opposed to 8.

Plus, lest we forget, the Chief Justice is going to call the shot on this one.  This is a monumental decision and he must be the person to deliver it.  If he delivers a ruling that overturns the outcome of Prop 8, the same Prop 8 people will immediately and without reservation begin the process of impeachment and removal a la Rose Bird.  The Chief knows this.  There's one immutable truth about politicians.  They will do anything to stay in office.

[ Parent ]
The 3 Dissenters from May (0.00 / 0)
The three dissenters from May could complicate the ability for the court to have any actual holding.  For example, they could join an opinion that says that Marriage Cases was wrongly decided, and therefore Prop 8 strips no fundamental right from a suspect class.  They could also refuse to sign the opinion by Chief Justice George that reconciles Marriage Cases with upholding Prop 8.  

Then, unless the four others all sign an opinion upholding 8, there would not be a majority opinion, and the only resulting precedent would be that Prop 8 stands.  The original 3 dissenters could even add some dicta, just to make clear that they do not believe that a fundamental right may be taken from a suspect class by a majority vote.  

As a law student, I despise these sort of splintered opinions, where you have to piece together various opinions to find out what the holding actually is.

[ Parent ]
Justice Corrigan (0.00 / 0)
Actually, I did get the impression that Justice Corrigan was not as hostile to overturning Prop 8 as Justice Kennard. It is possible for judges to make intellectually honest decisions, even if they disagree with the final outcome.

On another issue, as disappointing as it would be for Prop 8 to be upheld, any decision that limits the ability of an initiative amendment to restrict, curtail, or eliminate fundamental rights is in a very real way a victory. The arguments Starr were making were frankly frightening. I very much got the impression that, if nothing else, this decision may create a standard that would prevent an attempt to eliminate domestic partnership rights by initiative amendment, which must be seen as some consolation, however bitter the overall result may be. The decision could be a victory for the long term with regards to all minority groups, even if it is a near-term loss for same-sex couples.

[ Parent ]
It's pretty obvious the direction they are moving (0.00 / 0)
"Mostly, I base this on the court's negative reaction to Starr's argument that the people could abolish the state freedom of speech by initiative amendment."

Starr's comment is silly and extreme-- not helpful to his argument-- and he's relying on the fact that even if California voters elected to ban free speech and then Jews, that would violate the federal constitution, so the fed courts would immediately step in to successfully overturn these moves.

And the Court here knows that, and it's the reason, I suspect, that they won't buy this argument, that if you let them have Prop 8, then voters can make any discrimination legal. Except for sexual preference, all other protected classes and civil rights listed in state law remain in the U.S., backed up by the Constitution, which California voters cannot waive.

This is a little failsafe fact-of-life that will give cover to a Court that does not want to go through a recall effort when they overturn Prop. 8. So they won't.

[ Parent ]
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