Proceedings start at 9 a.m. PST. You can watch them here. The court will have 90 days to deliver a decision.
If you’re in CA, join an Eve of Justice gathering this evening, or watch the oral arguments outside the courthouse or other locations around the state.
Please share widely!
i should explain that some people think the court will rule that prop 8 was a validly enacted amendment, but that if marriage is going to be withheld from anyone, it must be withheld from everyone. thus, all marriages in california would become domestic partnerships, regardless of the sex of the spouses. i almost hope that is the ruling, since discommoding millions of straight people may be the only way we’ll get any federal relief any time soon.
I’d love for the third option to happen. Give the fundies a little taste of their own medicine. (and you know it’ll marriage will be returned shortly — but let’s see straight couples be refused marriage for a year or two and see how they like it.)
Isn’t the question before the court a valid or invalid amendment on procedural grounds anyway, without terminology coming into play? I also think if they were doing this as an equal protection case they would be looking at the rights actually protected vs. denied rather than nitpicking vocabularly. (I suppose I should take this opportunity to remind you that I would prefer the term “marriage” as well before you jump down my throat for that last comment.) “Let’s-see-how-they-like-it” strikes me as childish as a justification for either policy enactment or a court ruling. Besides, isn’t there also a fourth option – Prop. 8 valid, but previous marriages grandfathered in? I’m still not convinced the method was unconstitutional, but on the merits I favor the first option in your poll hands down.
as reflected in my poll.
Q1. Was prop 8 validly enacted?
Q2. If Q1 answer is “yes”, are the 18K s-s marriages still valid?
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p>The court already decided in the marriage case last year that it is unconstitutional to withhold the word “marriage” from a suspect class. Nothing about Prop 8 changes that assessment. So, if Prop 8 is deemed valid, a conflict still remains. One solution is to take the right to the word away from everyone equally. I like the idea. It’s a fair outcome. The warning “Be careful what you wish for” comes to mind. If you feel it’s childish for me to want you heterosexuals to have to suffer under the same regime you impose on me. I think it’s childish for you all to want to keep all the nicest tpys for yourself. So there! 😛
the real “childish” reason I’d not mind this outcome is I want anti-gay activists to be in the position of having common cause with gay people. That is, we’d all be working for the repeal of Prop 8. deeelicious.
The California case is very reminicent of the Schulman case, in which the SJC held that an initiative petition seeking to amend the Constitution to overturn the Goodridge decision (but only prospectively) was not unconstitutional. In my view, the Schulman plaintiffs were obviously wrong, but at least they had a tenuous reed to hang their hat on, namely, the provision in the Constitution forbidding initiative petitions that would reverse a judicial decision. In California, as I understand it, the petitioners’ argument, in summary, is that Proposition 8 is unconstitutional because it deprives gay and lesbian Californians of a fundamental right–the right to marry–in a discriminatory way. The petitioners attempt to shoehorn their case into the categories California law uses to judge the validity of an initiative petition–is it an “amendment” to the constitution, or a “revision”? But this seems no more convincing to me than what the Schulman plaintiffs attempted to do.
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p>Here is a thought experiment. Suppose that the following amendment to the U.S. Constitution were validly adopted in accordance with Article V:
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p>(I’ve chosen all of the “good” amendments, the ones that guarantee rights that we care about).
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p>Is the amendment constitutional? If not, why not?
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p>TedF
I’m no CA con law expert (are you?), but on its face I think the amendment/revision argument is perfectly plausible. The petitioners aren’t saying that the terms of Prop 8 could never be written into the CA Constitution. They’re just saying that the more elaborate “revision” procedure (which involves the state legislature) is required for a change of that nature — and, as set forth in the petitioners’ brief, exactly that argument has succeeded in the past (see pp. 18-20). Maybe it’ll win this time, maybe it won’t, but it’s far more persuasive IMHO than the Schulman argument — to say nothing of Justice Greaney’s borderline bonkers argument set out in his Schulman concurrence.
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p>Your federal example is off-point because it assumes the answer to the question under discussion. The question being argued this morning is which procedure was the right one for the constitutional change sought by Prop 8. By stating that your proposed amendment was “validly adopted in accordance with Article V,” you have assumed that there are no procedural obstacles, so there’s nothing to discuss. Of course the amendment you propose would be valid, if passed by 2/3 of each chamber of Congress and 3/4 of the state legislatures. But that says nothing about what’s going in CA today.
No, I’m not an expert–this is just my best guess. It seems to me that the revision/amendment issue is really about how extensive the change to the constitution is. A revision, according to a California Supreme Court decision cited in the linked paper from long before the current controversy, is a “substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions.” It seems to me that the petitioners are saying that the importance of the right at stake, rather than the extensiveness of the changes to the constitution, is what divides an amendment from a revision. I could be wrong and I’m no expert, but that doesn’t seem to me to square with the definition of “revision”. I believe that in an earlier case, the Lance W. case, the California Supreme Court held that a initiative (also, strangely, called Proposition 8) to abolish the exclusionary rule in criminal cases was an amendment, not a petition. Now, maybe the difference is that the right to marriage is more important than the right to be free of unreasonable searches and seizures or whatever language California’s equivalent of the Fourth Amendment uses. But I don’t see why the importance of the right, rather than the extent of the alteration to the constitution, is the relevant factor.
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p>Anyway, that’s just my two cents.
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p>TedF
is a remedy, not a right, and certainly not a “fundamental” right. Seems perfectly sensible to call its abolition an “amendment.” Not sure that says much about the case being argued today.
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p>But we’ll have to wait and see. This is one of those situations in which there are literally only seven opinions that matter, and ours are not among them. 🙂
about the relative importance of the exclusionary rule.
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p>You’re right about our irrelevance–too bad there is no BMG Supreme Court to handle these kinds of cases.
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p>TedF
AG Brown didn’t use your reasoning, but he agrees that Prop 8 was a properly enacted amendment, not a revision. Although he still thinks it should be invalidated because it undermines or conflicts with Article 1 of the CA Constitution, which begins
He counts marriage as an inalienable right. This approach has been described as both bold or quixotic because it’s never been tried before. But if I am not mistaken, it draws on statements the Court made in their marriage decision last May.
I cast my very first vote for Jerry Brown in the 1992 primaries!
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p>Laurel, I’m sure we agree on the substance of Proposition 8. I would be shocked, though, if the Court adopted Brown’s argument.
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p>Proposition 8, and our experience in Massachusetts with various initiatives over the years, persuade me that popular initiatives are, in general, a really bad procedure. If I were running things, I would ban them, both as to constitutional amendments and as to ordinary legislation. In Massachusetts, though, getting rid of the initiative can never become politically feasible until we have a more competent and functional legislature.
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p>TedF
They’re legislature isn’t exactly functional either.
Sad to say, the marriage rulings that came out of NY and WA, in particular, reminded me that bigots are everywhere, including without a doubt on the bench. This is why the Goodridge and CA Marriage decisions were so stunning: the court majorities actually ruled justly, not out of fear and bigotry. I would welcome another such shock from the CA court.
….comparison. Prop 8 did not repeal wholesale a constitutional provision it carved out an exception for a class of people to prevent access to a fundamental right.
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p>Would a duly enacted constitutional amendment that stated that the search or seizure of people with red hair doesn’t require probable cause to be lawful pass constitutional muster? That is a more apt comparison. And, of course, one has to presume that federal constitutional jurisprudence contemplates the difference between an amendment and a revision, which it doesn’t.
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p>At the end of the day, this is not a federal issue and comparisons to what the Supreme Court would consider if the US Constitution were amended in a discriminatory way is really irrelevant. Same for comparisons to MA. This is a California issue and their jurisprudence vis a vis amendment vs. revision is directly applicable here. The challenge may not prevail on this argument, but I will be very surprised if at least one or two of the Justices do not hold that Prop 8 is an improper revision.
The question here is procedure rather than substance. If such an amendment were proposed by 2/3 of both chambers of Congress and ratified by 3/4 of the states (or done via convention method which I believe was only used once for the 21st amendment?) then it would absolutely be valid. The Constitution is the Supreme Law of the Land and the only amendment that would itself be unconstitutional on the substance is one that would deprive any state its equality in the Senate. (Originally, it was unconstitutional to amend the Constitution to allow for the abolition of the slave trade before 1808, but as that year is long passed the point is moot.)
one could first amend Article V to delete the provision that bars stripping states of equal suffrage, and then pass an amendment giving MA three Senators, as God intended.
the God of 1698 also intended for Massachusetts to look like this:
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note how far Massachusetts extends north…
…our land claims in western NY and southern MI?
But I’m gonna hope as hard as I can today for a complete overturn.
Listening to him gives me serious heart burn. What a smarmy voice. His ‘validity’ v. ‘recognition’ argument is so disingenuous. ‘No one is tearing up marriage licenses, but it gets you nothing here in CA.’ Disgusting.
i think it fits nicely.
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p>justice kennard was interesting. i get the feeling she’s for leaving prop 8 in place but preserving the 18k marriages. on the other hand, she may just like playing devil’s advocate.
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p>something quite noticeable to be was the lack of interruptions of starr by the justices. they interrupted the plaintiffs’ lawyers endlessly, yet allowed starr to perform the entire works of shakespeare almost undisturbed. any thoughts as to why that might have been?
Yes, I noticed a very deferential bent towards Mr. Starr – apologizing for interrupting him – when that is precisely one of the privileges of being a Justice. When they speak, you shut up. Immediately.
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p>Good grief. How surprising that Starr argues that the California Constitution is not worth the erasable ink it is written in. If it can be altered on a whim, with that little process, what the hell makes it any different from some office policy statement written by some clerk in the municipal basement somewhere?
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p>’Heh, well, Justice, the people can govern themselves badly if they choose. [Shrug] Who are we to question their judgment?’ Phony.
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p>I only got to hear Starr and the rebuttal. Minter did not impress, unfortunately. I hope he was better at the beginning.
I only caught the last half hour or so — the tail end of Starr, and then the petitioners’ rebuttal. I agree that Minter was only fair. But I thought Therese Stewart was quite good.
She was quite good,and not to be deterred by [Kennard?]’s long interruption in rebuttal. I do believe style does matter in oral argument.
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p>I still can’t get over the cheap tissue paper that the CA constitution seems to be based on these oral arguments.
SUCKED. he was like a dumbfounded highschooler being bested in debate club. terribly pathetic. starr dissed him in the cordial way only someone like him can, and i have to say that krueger deserved it. the ag’s office should be ashamed for sending such an unprepared incompetent to testify.
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p>stewart was excellent. i also thought marshall and maroko (in particular) held their own nicely.
SF Chronicle has a decent rundown of the main points argued.