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Kate Kendell: ‘I Believe’ California Supremes Will Overturn Prop 8

VIEWPOINTS — “I have always believed the California Supreme Court should strike down Prop 8 because the law is so overwhelmingly on our side. But I feared that other factors might result in an adverse decision. That fear has now been replaced by hope as courts and legislatures — as well as public opinion — have moved sharply in our direction. The Court can cement its legacy by overturning Prop 8 and upholding our Constitution’s promise of equal protection. Or it can cause untold pain and hardship to our community and forever undermine the independence of the judiciary and the historic role of the courts in protecting minority rights. I believe the Court will do the right thing.” —Kate Kendell, executive director of the National Center for Lesbian Rights [NCLR]

By:           editor editor
On:           May 1, 2009
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  • 59 Comments
    • JPinWeHo
      JPinWeHo

      I do hope for the best (and that recent events might be favorable factors in the Court’s thinking), but I think that saying the law overwhelmingly supports overturning Prop 8 is wishful thinking. Most legal scholars that I have seen comment on the issue think the challenges to Prop 8 were weak.

      May 1, 2009 at 5:24 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      Yeah, wishful thinking from Kate I’m afraid, though I understand what she’s trying to say. While the fact that 4 more states may have legalized SSM between the time the justices heard arguments and their 90 days are up to rule is remarkable, I think they’ll only underscore their achievement in ruling in favor of SSM last year. This will leave them willing to let the people decide next year on the ballot.

      But I’m REALLY concerned more about what this means for any suspect class minority group that can have their rights taken away by a majority vote. And I do think the Supremes have to somehow address that to everyone’s satisfaction.

      May 1, 2009 at 5:32 pm · @ReplyReply to this comment ·
    • DeanP
      DeanP

      I’ve heard all the commentators saying that the Court won’t do anything, but at the same time, all those same people said the court wouldn’t legalize marriage in the first instance.

      Plus I’ve heard plenty of commentators saying the opposite. Including Judge Reinhardt of the 9th Circuit.

      May 1, 2009 at 5:36 pm · @ReplyReply to this comment ·
    • TANK
      TANK

      Meh, Kate Kendell’s probably religious, too, i.e., she’ll believe anything if packaged properly.

      May 1, 2009 at 5:42 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      The case law on the subject is extremely limited to non existent. One attorney covering the case found few is any even tangential cases. I am fascinated by those “legal scholars” who say the case is weak with such little case law, and none of it on point to go on. There is a difference between not much case law, and whether or not a case is strong or not.

      There has never been a case like this in CA as far as I can tell. It’s a case of first impression raising novel questions. The closest case that can be found dealt with due process, which unlike equal protection analysis, has as its basis a focus on what the majority believes to be due process.

      There is no such legal construction to equal protection. I have said this before, and I will say it again, if the CA S. Ct. rules in favor of upholding prop 8 they would turn equal protection analysis as it is understood on its head. The only thing that makes this case difficult are the justices concern over being re-elected.

      May 1, 2009 at 5:53 pm · @ReplyReply to this comment ·
    • ask ena
      ask ena

      @The Gay Numbers:
      I would like to agree with you…but after listening to the oral arguments and the Justices’ analysis, they are arguing that essentially, based on CALIFORNIA law and its domestic partnership laws, prop. 8 does not remove equal protection.

      They, like so many others, turned it into a semantic argument.

      So while I have a clear idea on what is the RIGHT decision, I have no idea what is a legally viable decision.

      And I find it hard to believe these justices will be swayed by their next election. Am I so naive for thinking that?

      May 1, 2009 at 6:08 pm · @ReplyReply to this comment ·
    • JPinWeHo
      JPinWeHo

      @The Gay Numbers: I think the justices who voted to legalize gay marriage already tossed aside their concerns about voter recalls. Of course, every case presented to the CA Supreme Court presents novel issues – the CA Supreme Court generally only hears cases that have issues that have not beed decided before (it chooses what cases it will decide). However, based on the precedent that IS out there (i.e. the cases on revision/amendment) overturning prop 8 does not look like a sure bet. On the other hand – I completely agree that if they don’t overturn Prop 8, the CA equal protection clause is meaningless – but as one justice said during oral argument (Kennard?) – (paraphrasing) “Can’t the people amend their constitution to limit equal protection.

      I’m hoping for the best, but I was fairly confident after watching oral argument that things were not favorable ( in contrast, when I watched the oral argument for the marriage cases, I was fairly confident the court was in our favor)

      May 1, 2009 at 6:09 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Ena:

      a) Oral arguments tell you nothing about how they will rule.

      b) My concern is, however, that they will turn it into a game of semantics. This is not the first time a court has done this on gay issues. When decided Bowers v Hardwick the U.S. S.Ct. allowed for criminalization of homosexuality by saying that the laws involved the act of homsexuality rather than the status ofbeing a homosexual. It was pure bullshit. Everytime the courts do this,, historically it comes back to haunt them.

      c) Yes, I think you are being naive about their political survival being an issue. To be quite frank, that’s the only real issue. Their prior case is very clear on what they should do here.Indeed, the case seems tailor made to respond to any such challenge. When you read the language of the first case, it anticipates this case. DeanP is right that many did not see their decision in the first case coming. I still do not understand how they can rationalize the sweeping ruling in the first case, and then turn around to destroy it a year later. The only thing that makes sense is that they would do it for political survival. Seriously, read the first case ruling from last year. It’s very , very broad and very very clear. Yet now they are spliting hairs. THe o nly other possiblity is that they are not intellectually capable jurists, and the sweeping language was not intended. I don’t buy that argument.

      JP

      There is precisely 1 case that’s relevant, and it is not on point. As i mention, it addressed due process which unlike equal protection is about majority input. That’s the novel aspect of this case. Is it a slam dunk? No. That was not my point. I have no idea how they will vote. My only point is I do not understand these legal scholars who are so sure of the outcome. With such little case law that’s on point, how is that even possible? The best one can do is to extrapolate a maybe more likely than not, but even that’s a stretch. So when someone says the over turn 8 side has a weak case, I am at a lose to understand what the hell they are talking about. no one in any articles I have read has provided any real case law to back up their claims.

      Again, her asking a question does not indicate where she will vote or anyone else. I am not saying I k now what they will do. I am saying- no one knowss what they will do. What I do know is a) I can’t be certain based on case law what will happen with this case and b) they would destroy equal protection if the uphold prop 8. Those are the only two things I can add to the conversation.

      May 1, 2009 at 6:22 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      by the way- follow up on the prior case:

      Here’s the really confusing part, and why i suspect politics: They were asked to not take up the case until Prop 8 was voted upon. It’s bizare that they would take the case, if they felt that the issue was strictly a procedural one that could be resolved through voting for an amendment to the Constitution rather than a law. If that’s all the difference was, then their decision in the first case to me makes little to now sense. Why make a suspect class? Why find equal protection? Why find a basic right to marriage? All sweeping broad language that could have been avoided by simply waiting.

      May 1, 2009 at 6:27 pm · @ReplyReply to this comment ·
    • JPinWeHo
      JPinWeHo

      @The Gay Numbers: The court’s decision relating to suspect class still stands regardless of the outcome of the Prop 8 decision. That is a significant holding that will ensure the GLBT (at least outside of marriage) will be protected from discrimination.

      As for legal scholars – as I mentioned, the CA supreme court would not take a case that was a simple legal question. They generally only decide difficult questions of law. I’m not sure what “one” case you are referring to…but you should read the atty gen’s brief which goes into detail the various cases which support the argument that the court has held that other changes to fundamental rights have been deemeded amendments not revisions. (link below)
      http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-answer-response-petition.pdf

      The CA supreme court will rarely have an “on point” case that will deterimine the outcome. I believe that most legal scholars feel the odds of overturning Prop 8 are low is that the legal authority (cited in the Atty Gen’s brief) would not support that decision. The Court can always make a surprising decision that overturns what appears to be prior precedent and I will be happy if they do so. The odds, however, are slim.

      May 1, 2009 at 6:53 pm · @ReplyReply to this comment ·
    • ask ena
      ask ena

      One thing we DO know…

      It’s sure taking them long enough. Do they always wait until the very end to release their determination??

      May 1, 2009 at 7:09 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      The “semantics” people are referring to are simple: the judges have to decide whether they’re looking at a new California constitution…which instructs them to invalidate the part of what they’ve said about equal protection regarding the word “marriage” in the “re: Marriages” case…or decide that Prop 8 was illegally implemented as an Amendment instead of a Revision.

      So, assuming it’s a new Constitution, one in which the people legally amended it to refine the judge’s own “re: Marriages” findings, that means that what the judges said about same-sex couples requiring the same rights in NAME as well as practice can now be considered overruled by the majority vote. As long as they don’t decide to overturn prop 8 on a technicality (i.e. revision/amendment), the judges will say that the people have AMENDED the equal protection clause by specifying (or clarifying) the newly focused definition of marriage.

      The broader idea that majorities shouldn’t be able to vote on minority rights is more the key than the equal protection clause to an overturning of prop 8. The justices would have had to be convinced that the societal need to protect minority rights would construe a NEW definition of what a “revision” is. I think they could do it, but it would definitely be labeled as activism by a lot of legal scholars, as it would set precedent.

      Don’t count out the possibility though…although Kennard made it extremely clear she will uphold prop 8, there are 2 judges (Werdegar & Moreno) that would probably be willing to create the new precedent. George seemed unwilling, however not totally comfortable in that. And I think Chin really could be thinking strongly about the implications for minorities as a result of this case.

      In the end, however, look for the justices to take what now looks like the path of least resistance and uphold prop 8.

      May 1, 2009 at 7:25 pm · @ReplyReply to this comment ·
    • Dr. Pedantic
      Dr. Pedantic

      I wonder what the context was of Kate’s statement. Fund-raising? Because I heard her give a speech shortly before oral arguments and she all but said that we were likely to lose. And things went pretty badly for us at oral argument — we clearly don’t have Kennard, who didn’t even think the Court should have taken the case (even though she was in the majority in the Marriage Cases last year). It’s hard to imagine that what other states are doing will have any impact. IA just did what CA did last year. VT was remarkable, but as someone noted, that just points out that we always have recourse through the political/legislative process.

      Jon Stewart did a piece a week or so ago making fun of Republican overreactions and scare tactics, under the tag line “Shit That’s Never Gonna Happen.” I think that’s why the Justices aren’t buying the argument that if a majority can change the Constitution to discriminate against a minority, then there basically is no Constitutional protection for minorities at all. I think they see that as Shit That’s Never Gonna Happen. And that’s not a good enough reason to overrule the voters’ will. As I think Kennard said, isn’t the real issue here that it’s just too easy to amend the CA Constitution? That is the real problem, and the one with the farthest-reaching consequences.

      May 1, 2009 at 7:31 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Jp

      I am a lawyer. Let me repeat myself because you ignored it in the prior post, and instead, simply repeated the case law which I already pointed out has little value under the circumstances. The case law dealt with due process. Due process is not relevant to equal protection analysis because the very question being asked- can the majority decide this- would be a yes on due process. Unlike equal protection due process allows majority action. Ia m not sure why you think that answers a question where the law is understood to be the reverse. That equal protection explicitly is about limiting majority action.

      When I say on-point, I mean of precedential value regarding the particular line of case so that we can accurate determine what might be the court’s view. Precedential value means case law that tells you how a court might think under a particular set of legal circumstances even if you do not have a clear answer to the particular case. To say a case is weak is to say that we have a precedent from which we can draw direct conclusions even if the facts differ enough for the S.Ct. to clarify about points of law. Often, even with clear law, there maybe a situation in which the court will want to draw a distinction or clear up some ambiguity in language, etc. If the case is weak, they could have simply not taken the case or have ruled by now.

      That’s not present here. This is totally a case of first impression since no one has asked this type of question about equal protection, which is inheritedly anti majoritarian. There is no other area of law that is so anti-majority.

      I again make the point that the case law upon which peo rely to claim a weak case here is about due process. That’s an area of law that is not dependent on they very thing that equal protection is dependent. In the due process question it was a question of whether punishment was out of bounds for what is required under due process. The thing is that due process is determined in part by the majority. The community standard part of due process for example helps us to define what is cruel and unusual punishment.

      Equal protection has no such determination. Those cases are not the same as this case because the very thing that makes it novel means that they are inapplicable. I am not saying the Courts will not use this case law. I am saying it is weak caselaw given the difference between due process and equal protection. I am saying they shouldn’t since due process is meant to do a different thing that equal protection . I am not sure how anyone can argue with me on this point.

      Also, suspect class is of little value if you say that they are not subject to equal protection. Suspect class is a part of equal protection analysis. It’s meant to define the class that is subject to heighten scrutinty. It’s a hollow ruling since the suspect class status can at any point be destroyed by a mere majority vote. In what way is this of value to us? If they allow this to stand in the case of a fundamental right (marriage) then it can be applied to any law involving gays that the right wants to repeal by majority ballot. Again,t hat’s the logic of what equal protection does. It makes no sense as a body of law otherwise.

      The odds are slim for political, not legal reasons. Why you keep disagreeing here with weak case law is beyond me. I keep seeing people do this. They ignore the nature of the area of law. It would be like me using contract law to discuss a criminal law case.

      May 1, 2009 at 7:36 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Bruno

      Uhm- ruling in favor of Prop 8 will have equal predendential value. I have no idea what you mean by a “new constiution.” This is wrong. What they are really faced with are two contradictory sections of a constitution. One section – equal protection analysis- and the other- the intiative/revision process. Both are valid. The problem is they are also in conflict here. There is nothing new here. Just the application of concepts. The actual non-judicial activist aproach would be to find for revision because that addresses the conflicting provisions by a) allowing for equal protection analysis b) while at the same time allowing for a check by the majority. As it is, if they rule in favor of 8,t hey destroy equal protection analysis. There is a reason you have groups as diverse as labor, race groups, and religious groups arguing for overturning 8. It’s not solely to help gays. It’s in their own interest. Any interpretation other than overturning 8 means that any minority class can now be subject to the whim of majority vote. It means there is no equal protection for minority groups under CA law. It’s as simple as that. Everyone knows this but the gay issue gets in the way. By the wayl I want many ofyou to start citing the legal scholars who are so certain of their position.

      May 1, 2009 at 7:42 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @The Gay Numbers:

      Listen to what Justice George said: “we’re looking at a new constitution here.” Yes, there is a contradiction between their interpretation last year of the equal protection clause, and the amended text provided by proposition 8’s passage. So it’s their decision as to which one “wins out” between the two. And what I’m saying is, Justice George and the others made it perfectly clear that the more recent text redefined their own interpretation (“re: Marriages” case) of the equal protection clause. It superseded their interpretation, redefined it, and codified it. The only thing they’re deciding right now is if that was done legally, which gets to the revision argument. But yes, it is a matter of semantics, and it’s an extremely narrow question.

      May 1, 2009 at 7:49 pm · @ReplyReply to this comment ·
    • Chitown Kev
      Chitown Kev

      @The Gay Numbers:

      I have a question, numbers. (I’m not a lawyer)

      Now I know there is a long history in California ballot initiatives of the majority voting against a minorities interest (the most infamous case, I believe, was the ballot initiative that prohibitied Asians from owning businesses; Prop 209 was another example, as was Prop 22). Is it the fact that Prop 8 amends the Constitution itself that makes both dangerous to minorities and yet fiendishly difficult to overturn?

      If you answered this in another post (and you may have in #15, direct me to that post).

      May 1, 2009 at 7:51 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Bruno:

      a) There are only a few choices. Either last year was a poorly decided case or they will have to overturn Prop 8. Remember the debate here is between how to amendment for the purposes of equal protection. Is it through majority vote or super majority.T he question is not whether a majority can change the COn, but what size of majority. To me, again, the easiest answer would be supper majority because it preserves both sections of the COnstitution that are now in contradiction. I don’t care what they said during orals. Again, that to me is no indicator of what they will or will not do. I am not saying they will overturn 8. I am saying that the indicators so far given are poor. I remembered everyone knew for certain a few weeks ago that they would come down with a decision. All the so called experts said- yes thats likely what it means. Yet, no decision has happened.

      b) this is not a limited case. The case law here will affect all minority groups in california going forward. Again, there’s a reason for all the amicus briefs by minority groups, labor and religious leaders. It impacts every minority group. It’s extremely broad.

      May 1, 2009 at 7:54 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @The Gay Numbers:

      a) Well that is the ironic thing. The justices are deciding on whether or not the people put them in their place on last year’s case. Judging to uphold prop 8 does basically say the people overruled them on the one aspect of “re: Marriages” regarding the word “marriage.”

      I’m going mainly on Justice George bringing up, with rather some authority, that they were “looking at a new constitution.” That speaks volumes that he believes the constitution was changed, however, it may have been more of a hypothetical comment. But still, it was a rather jarring one for those of us who wished to see this heinous amendment tossed. If he said this in earnest, it means that he believes no additional scrutiny (the revision process) was necessary to make this action legal. So he had to have been talking hypothetically for me to believe that he would fall on the side of revision.

      I agree though, things said or done during orals are not absolute indicators, and they’re thinking long and hard over this decision. However, I think we can all pretty much agree that Kennard will have had to have come a long way in her line of thinking to vote to overturn 8, and the others are harder to gauge. But she’s possibly crazy enough to do just that.

      b) By no means was I saying this case doesn’t have broad impacts for everyone. However, in the technical scope through which the court is basing its decision, it is extremely narrow.

      May 1, 2009 at 8:03 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Chitown

      There has not been a long history of these cases being decided on CA constitutional law grounds. Even the race cases in the 1960s in the state were decided on federal grounds or dealt with laws rather than con laws. Why? I don’t know. Maybe to avoid this contradiction which could render part of the Constitution moot. Maybe because no one followed up like the right has done with race issues to challenge. Maybe because there was national protection in place for the others such they would lose anyway on the racial questions. Many of the cases were also decided at the federal court level. Remember each level of government- the U.S. Constitution- and CA state Constitutiona- affords rights separately. One has no impact over the other althought they may overlap. This is why I am in favor of a two tier strategy regarding gay rights-a federal national strategy and a state by state strategy. The later being short term, and the former is a long term target.

      Anyway, to answer your question: Yes, it’s the fact that it amends the constitution that makes it dangerous. It places two sections of the CA constitution in direct conflict. People have been avoiding this issue for some reason. Atty General brown’s brief somewhat gets at it- but then he punts because he’s playing politics too.

      It is also dangerous for other reasons. It means that in any case of a suspect class, one can now amend the CA Constitutional with 50 plus 1 for any class. That means there is no longer any equal protection under Ca constitution law. If it were non-constitutional, one could overturn a law, but still have no con law conflict. You may ask well what does this mean? This means if you can get 50 plus 1, you can affect the rights of any minority classification in CA. Now, the danger is small given the federal constitution protection for many groups, but I can not right now say there is no danger. There are things that the CA constitution protection that federal con law does not. Thus, those things would now be subject to majority vote of 50 plus 1. I always tell this story- I have af riend. She’s Haitian. Conservative. Also a lawyer. When prop 8 was decided, she point blank said to me- “do they understand this can be used against any minority going forward.” I said- I don’t think they understand anything beyond what they are being told.

      May 1, 2009 at 8:08 pm · @ReplyReply to this comment ·
    • Chitown Kev
      Chitown Kev

      @Bruno:

      There’s that word “marriage” and you have to add this…

      Kennard (I believe) also suggested that given the strong DP laws in California, that the argument is simply one of “nomenclature” and not substantive. In other words, there is little or no difference between “marriage” and “domestic partnership” insofar as the actual; rights conferred.

      May 1, 2009 at 8:11 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Bruno

      I am really not focusing in on their questioning. Its only jarrng if you tought he was going to accept our arguments without debate. It could have just as easily been devil’s advocacy. At the end of the day, many of you are probably right,b ut again, I do think it would be for political reasons given the language of their own decision. That’s my only point here. Not that you are wrong as to the possible outcome, but that there is no legal basis for it when one thinks about it.

      Especially in a situation where one is addressing contradictry provision. The goal is normally to balance those provisions of con law rather than eviscerate one in favor of the other. The revision really would be the compromise approach, but part of this is politics so people are making it seem like to require a revision for this sort of amendment rather than an iniative is denying the majority its check in the process. But the irony, of course, is that the semantics would deny equal protection, but enforcing equal protection would not deny the majority it’s right to process. It would simply require a super majority. Thats why I feel this is politics. That’s is plainly clear, but seems to be off limits.

      The technical scope is deceptive. The technical scope is revision versus iniative. But, to decide that is to decide equal protection or no equal protection as we understand it in this country.

      May 1, 2009 at 8:14 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Chitown– then she again is changing the ruling they made last year. There is no way around it. Either last year was completely a fucked up decision on their part or it wasn’t. To accept their arguments now would seem to make that point. Again, they were given the choosen of punting then to wait until after prop 8 was voted. Yet, they choose to take the case and choose to rule as they did. I don’t get it. In terms of judcial action, it shows now restraint at all to vote one way one year, and then reverse the next with the same set of issues that could have been avoided by waiting until after prop 8 was decided.

      May 1, 2009 at 8:16 pm · @ReplyReply to this comment ·
    • Chitown Kev
      Chitown Kev

      @The Gay Numbers:

      Yeah, that much I understood.

      I mean, even in Florida it took 60% of the vote to amend the Constitution and pass Amendment 2. A majority of 50% + 1…that is very dangerous and I recognized it at the time.

      May 1, 2009 at 8:16 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      and really at base chi- that’s all we are discussing here: should take 50 plus 1 or something more to change fundamental rights. To decide as they did last year, and if they decide to uphold 8, would piss me off not only as a gay man, but as lawyer because it would show not consistent legal analysis at all.

      May 1, 2009 at 8:21 pm · @ReplyReply to this comment ·
    • JPinWeHo
      JPinWeHo

      @The Gay Numbers: Please, unless you are a practicing appellate attorney with a California bar number, do not waive your JD around to give you credibility. I’m a CA attorney (as I’m sure many queerty readers are). Anyway, bottom line is that I think you read the cases too narrowly. I’ll save you the opposition brief, but if you can “amend” due process, or the right to be free of cruel and unusual punishment, or the right to privacy under CA law, that seems to arguably provide a basis for permitting amendment of the CA equal protection clause. Is that fair, no. Is it right, no. Does it completely undermine the purpose of protecting minorities from majority tyranny, yes. Is it legal – that’s a whole separate question, one that is likely answered: probably. Hopefully, you will be right and the rest of the practicing appellate specialists are wrong.

      May 1, 2009 at 9:37 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Jp

      Drop the defensiveness. I doubt many people here are lawyers. Most are just gay people interested in the topic. This is not a legal blog. My point in mentioning my background is that your discription makes no sense as to the history and concepts of either due process or equal protection. I am not saying the Court will not buy it. I am saying its a bullshit argument.

      . I am sure people buy your argument, but it’s a cop out. Ultimately, as a legal argument comparing due process to equal protection is bizare because, as I keep saying, and you keep ignoring, one has majoritarianism as a basis of its analysis, and one does not. Cruel and unusual has a community standard. Equal protection does not. To then argue, they are the same as to how we treat the majority is bizare.

      If you are indeed a lawyer, you should know this. If upholding Prop 8 undermines a section of the CA constitution, then you are arguing a really bizzare position especially because not upholding it does not undermine the ability of the majority to still act. As I keep saying, most of this is to me political.

      You can say it is legal, but that just means the court subscribed to the bizare argument that you are making. Once state courts across the country subscribe to all sorts of bizare arguments like separate but equal is equal amongst others. The law has evolved to reflect a more consistent view of the concept of equality. You keep saying I am legally correct,a nd then saying, but it does not matter because the court can ignore all of this. Yes, they can. They would be wrong intellectually to do so.

      Due process and equal protection serve two very different functions and require very different tests for validation and implementation. The key component I will repeat until you get it is that due process is partially majoritarian, and the equal protection is anti-majoritian. To argue one is the same as the other, in context, renders the question being asked meaningless because it says we have decided that the majority is a part of equal protection analysis as it is with due process.

      May 1, 2009 at 10:22 pm · @ReplyReply to this comment ·
    • Dan
      Dan

      I haven’t read the whole thread. Did anybody else pick up on what Kendell is doing here? On the surface, she’s saying she thinks the Supreme Court will overturn Prop 8. Between the lines, she’s trying to persuade them to do that.

      May 1, 2009 at 10:28 pm · @ReplyReply to this comment ·
    • Dan
      Dan

      @Dan: Well then, let’s get behind her!

      May 1, 2009 at 10:31 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      JP

      One other point: What happens here if they decide in favor of prop 8? What happens with other minority groups in CA? In effect, how does this allow the equal protection clause under the CA constitution to stand? To me, the choice of upholding 8 invalidates a section of the CA constitution. I do not see how equal protection can have no meaning without invalidating the section of the CA constitution pertaining to it.

      May 1, 2009 at 10:33 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @The Gay Numbers:

      That’s a good point about a revision being a compromise, and let me just say I do agree with you from an ethical and even a legal standpoint. But the justices are not really required to view their duty here as to make a compromise. That would be the most ethical, but not necessarily standard, route.

      As far as it being a political thing, it may very well be, but I would think assuming that fact would be at least as presumptuous, if not more, than assuming they’ll uphold prop 8 based on how they sounded in oral arguments.

      May 1, 2009 at 11:17 pm · @ReplyReply to this comment ·
    • Schteve
      Schteve

      @The Gay Numbers:

      While I completely agree with your arguments, I just read an article that answered this very question in probably the way it would be handled by the court in such an outcome:

      “If the California Supreme Court holds that the proposition is a simple amendment instead of a revision, it will need to act like an amendment. Therefore, it can not make major changes to the constitution. Since equal protection of the laws is a central tenet in the California Constitution, those protections would necessarily need to remain intact. The proposition would not be able to be interpreted as an exemption of equal protection for gays and lesbians.”

      There of course would just be a really weird exception case when it comes to “marriage”. Heh.

      May 2, 2009 at 2:11 am · @ReplyReply to this comment ·
    • JPinWeHo
      JPinWeHo

      @The Gay Numbers: I agree, on a public policy argument, it would create a grave injustice. But, that is more of a criticism of the CA referendum process rather than on the legality of permitting the public to amend the constitution. You are confusing the two issues: whether the general public should be able to amend the equal protection clause and whether it’s legal for the public to amend the equal protection clause. The only question before the Court (unless they buy the AG’s unusual legal argument) is the later one.

      May 2, 2009 at 2:37 am · @ReplyReply to this comment ·
    • JPinWeHo
      JPinWeHo

      @The Gay Numbers: FYI, I’ve seen lots of comments from other attorneys on this blog – gay attorneys are numerous and tend to read blogs like this that address gay legal rights and issues – we can’t read Above The Law all day long…

      May 2, 2009 at 2:44 am · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      I do not consider the nullification one portion of a constitution by political application of another to be public policy consideration. I consider it to be poor legal analysis.

      May 2, 2009 at 3:01 am · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      So in other words, they will simply claim it does nothing to equal protection analysis although it eviscerates a basic provision of the California constitution? Yes, again, I agree, they can do many political and legally incorrect things, but none of which makes it valid as a legal argument. What I guess I was seeking in this debate was something that would sugges to me that the CA Ct would not be making a political decision. We do not know how they will decide yet, but I think anything beyond requiring the more stringent standard for a rule meant to apply as a check on majority is so screwed up as to make me look at the court with contempt. I don’t think of this just for gay rights issues, but as a general principle. The problem is everyone is so busy trying to seem intellectually reasonable about this that we are once again seeing laws applied in ways that they have not been applied in 50 years.

      May 2, 2009 at 3:05 am · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      RE The existing marriages

      One other point- to remain intellectually consistent how do the prior marriages stand? Is this more politics?

      May 2, 2009 at 3:10 am · @ReplyReply to this comment ·
    • downtownla
      downtownla

      Who cares what Kate Kendall has to say? She blew it for our community before by misreading the electorate… now she is misreading the judges… get her off the stage now and let’s try to find new leadership

      May 2, 2009 at 11:51 am · @ReplyReply to this comment ·
    • QICM
      QICM

      @The Gay Numbers: Most initiatives, without explicit language to the contrary, do not apply retroactively. “Whenever and whereever performed” is insufficient. And there are potential federal constitutional issues if it is applied retroactively.

      May 2, 2009 at 12:02 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @The Gay Numbers:

      Maybe it doesn’t help that Jerry Brown sent a stumbling bumbling lawyer to represent his equal protection-based argument. Or maybe, like you say, it doesn’t matter what impressions were given during oral arguments. I hope so, because…

      if what you’ve been saying in this thread about equal protection is correct, then the judges deciding that these kinds of laws are revisions would actually still leave the equal protection clause eviscerated. It wouldn’t matter if they think minority rights being voted on deserves a higher level of scrutiny, it would still mean that the fundamental rights of a minority are at the whimsy of the majority at the ballot box, even if it would have to go through the whismy of the legislature first. So, unless they buy Jerry’s argument, which it seemed they weren’t even entertaining for a moment, your nightmare scenario has already come true.

      May 2, 2009 at 12:52 pm · @ReplyReply to this comment ·
    • ask ena
      ask ena

      Wasn’t the whole point raised by Kendall during the oral arguments that ultimately, in CALIFORNIA, equal protection was not compromised, because CA’s strong domestic partnership laws provide equal protection with or without prop 8?

      Maybe this goes contrary to their earlier decision, but based on THIS case, and not the last one, I was lead to believe she was arguing that equal protection remains at the state level, in CA, with prop 8 in the books.

      Obviously at a federal level, it’s another story.

      But my sense is that at least Kendall was saying equal protection remains for partnered gays and lesbians because of DP laws.

      May 2, 2009 at 1:45 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @ask ena:

      Do you mean Kennard? She made arguments like this, basically saying the term “marriage” was just a word. Which flies against their ruling from last year, but she did say stuff to that effect. I think she’s, bluntly, an asshole.

      May 2, 2009 at 2:18 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Bruno that’s incorrect under american juris. It does not eviscerate the equal protection to require a more difficult standard. The more difficult standard is what protects the right. There is always a balance. What eviscerates its meaning is where there is no real difference at all between the process for determining a right versus say whether one should increase funding for public parks. When both are treated the same such that all one needs is 50 plus 1 is where the legal standard loses any real meaning. By making it more difficult it means more times than not hte right will not be overturn. It’s the compromise positionb ecaue if the people are so sure as a majority that it does not want a right- it can still do so, but must have a super majority and in this case must go through the legislature. indeed, that can happen at the federal level. If one wanted to change rights, one can do it through amending the U.S. constitution, but that process is made more difficult than simoply passing a bill for a reason. The assumption is that the difficulty of the transaction will make broaching the right that much more difficult. This does no eviscerate the concept at all in practice- which is what matters. But it also does not deny the competing interests involve. The practical effect is that it requires more of voters than they dislike the minority. If they are so compelled to deny a right, then they have to have a process that reflects that. That’s why I say revisions aer the compromise. They require more of voters than the process used now requires.

      May 2, 2009 at 2:37 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      a) Once again you can not take oral arguments like you are listening to someone tell you their views. She’s testing arguments. You can not assume that is what she beleives given the contradiction it would produce regarding her earlier decisionf rom last year. In fact, I am inclinded to think thats not what she beleives given her own wording from last year.

      b) You can not go based on “this case” That concept is meaningless in the law since no case is just based on the case in front of you when addressing con law principles, but the whole set of principles involved int he case, the case law such as last years decision matters. Now, does that mean I know what they are goign to do? No.

      I will say what I read mad professor say over at Pam House of Blend. That he does not understand the pessmism. The reality is more likely 50/50 regarding outcomes. I agree with that. I think again the only real issue here is politics. Not law. The law to me if you wanted to yield a split the baby approach is revision rather than upholding prop 8 as it stands. I do not think based on the cases cited that there is a huge a amount of law here although many seem to disagree. I find their reasoning lacking.

      Also, many of you seem to think this is like law and order where people decide cases based on oral arguments. Most of these cases are not decided basede\ on oral arguments. They are decided based on brief. This is just part of the process, but its not necessarily the most important part.

      May 2, 2009 at 2:44 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @The Gay Numbers:

      I call BS on that. If people have the option to take away rights at the ballot box, no matter how difficult it is to effect, then there is no guarantee of equal protection. Period.

      May 2, 2009 at 3:00 pm · @ReplyReply to this comment ·
    • Bruno
      Bruno

      @The Gay Numbers:

      Then what do you make of the fact that Kennard didn’t want to hear the case at all if it involved anything more than the question of the validity of the 18,000 marriages? She wanted it to let it go through lower courts? No, too much suspension of disbelief for me here.

      I understand the justices will use “devil’s advocacy” as a method of inquisition, but her line of questioning and discussion went far beyond that. She may have changed her mind since then, but on the day she heard the proposition 8 arguments, Kennard was not only against overturning proposition 8, but showing tangible disdain for the reaction of the LGBT community to its passage.

      Anyone who believes otherwise is fooling themselves.

      May 2, 2009 at 3:03 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Bruno

      I am discussing are the basic structures of our system that have existed for centuries, and have worked. So, what you are doing is pointing out you don’t know this. The reason why we make it harder rather than impossible is precisely because we want to balance two interests.

      My issue with the Ca Court is that they are not balancing at all if they uphold Prop 8. They are simply saying majority rule without making it harder, is the evisceration of how we address equal protection in America. My other prolem is that they would have signed on to two contradictory things from last year to this year. And any claim that this is a new constitution is bullshit since they knew this amendment was coming up. They would create the worse kind of image of the judiary- that it really ist just them making it upa s they go because they could have simply differed, but choose not to do so last year.

      This discussion requires that you not only understand legal theory,b ut also transaction costs. That if a transaction is harder to do means that it is less likely to happen. This then allows for a a check based on real life rather than an absolute. Our system is not about absolute rights. It’s about a balancing of rights.

      I have no clue what Kennard is thinking. I have no clue what will happen here. I say 50/50 because I don’t pretend to know what they will do. I am simply telling you that the case is not as easy a win for the pro 8 side if they were really balancing the constitutional principles here. Even the statement,”it’s a new constitution” is bizare to me. It essentially means they don’t have a constitution in practice if all one needs to do with fundamental principles like equal protection is to pass a bill by 50 plus 1 in the popular vote without a more involved process like passage through the legislature and then the public by supermajorities. Without this process of greater deliberation than an average build would face, there is no practical difference between a law and a basic right.

      May 2, 2009 at 4:24 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Incidentally- my last sentence is the danger that the CA AG was trying to avoid. They realized that the conflict is between two competing interest in the CA Constitution, but to uphold Prop 8 is to effective equate basic rights to any other law. Now, they may do this, but it will have a far ranging impact practically speaking outside of just this case. Yes how you do it is procedural, but that’s like saying how we amend the US constitution is procudure. In this case, it’s the produre that determines substance because of the difficulty of the transaction of actually amending by the compromise standard of revision. I am not saying I am right as to what htey will do. I am saying how such arguments impact a wider area than anyone is wnating to admit. I lookf orward to this case being used by some other lawyer in another case not about gay rights,a nd then watching the same lawyers trying to say how those cases are different.

      May 2, 2009 at 4:27 pm · @ReplyReply to this comment ·
    • Schteve
      Schteve

      @Bruno:
      I’ll say. Her vote against accepting the case was in direct contradiction to her concurring opinion she wrote which specifically said “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.” I wouldn’t really hate if her she didn’t specifically say that this was something that should be handled by courts instead of the people.

      @Bruno:
      How then do you answer George’s question during oral arguments about granting those same rights via the ballot box? Can rights covered by equal protection only be granted, and once in place never ever rescinded?

      May 2, 2009 at 6:53 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Schteve

      The bizzareness of their statements can be summed up by as someone pointing out them describing the Constitution as a “new constitution” It’s a bizzare statement because one would assume that any change that so fundamentally changes the constitution as to make it a “new constitution” would constitute a fundamental change to the structure governing CA, and yet, others say that means they believe that they are now guided by the new constitution. This is bizare to me because that again creates the quesiton of what is fundamental if not somethin gthat fundamentally re-structures theri constitution as to make it “new”

      May 2, 2009 at 7:08 pm · @ReplyReply to this comment ·
    • Josh
      Josh

      The simple fact is the California Constitution is an idiotic documents. It allows a referendum to be held on any topic, including amending the constitution without exception. Mob rule is a horrible Idea, and until someone decided to actually rewrite the constitution California will continue to be screwed up.

      As for the specifics of the case, there is simply no chance in hell the court will overrule prop 8. it will be a 5-2 decision upholding the vote. There is no solid precedent or textual reason for overturning the proposition and absent a textual reason overturning a constitutional amendment would require ignoring the constitution altogether.

      The revision/amendment argument is somewhat convincing but absent a clear test for determining the difference between the two, and the tests so far in precedent are not convincing, the court will err on the side of the democratic process. Equal Protection, and Due Process arguments are completely irrelevant as they can only be used to invalided inferior laws. Once you amend the state constitution that amendment is supreme law, whether it conflicts with other provisions or not.

      May 2, 2009 at 9:02 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      You know saying something is convincing does not make it so. You do not offer any thing to back up your statements any more than anyone else did here. Being forceful in your chocie of language is a nice law school trick, but I tend to pay attention to your actual argument. What you basically said is “there is no precedent for either side on this issue, and, therefore, they will vote 5-2 to uphold.” If there is no precedent, and the issue is a conflict of two parts of a Constitution, it would be nice for some of you to say as I have said- I don’t know what will happen. I am begining to believe some of youa re lawyer. Your certain in the face of flimsy arguments and information is impressive.

      May 2, 2009 at 9:29 pm · @ReplyReply to this comment ·
    • sfboi
      sfboi

      @Chitown Kev:
      There is enormous difference between marriage and DP. DP is only available to same sex couples (unless you are 62 or so) meaning that when you need to fill out many kinds of CA applications you would check the “DP’ box which immidiately violates your right to privacy and reveals your sexual orientation which would not be the case if you’d just say “I am married”.

      May 2, 2009 at 10:15 pm · @ReplyReply to this comment ·
    • Chitown Kev
      Chitown Kev

      @sfboi:

      I understand the differences, even more than I did last night because I’ve read the first 30 or so pages of the Marriage Cases decision. The very question that the Cali Supremes were asking last May was about the question of “nomenclature” more or less

      So I really don’t get why Kennard was pusuing that line of questioning about the “nomenclature” in March.

      May 2, 2009 at 10:26 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Chitown

      Good luck trying to understand these justices. If people here are right, then my advice is that they are intellectually not up for the jobs that they perform. It’s really simple: either last year meant something when they wrote that opinon or it does not. If it does not, then they had no reason to write it from a legal stand point. This b.s. that I am hearing now- none of justifies the contradictions.

      May 3, 2009 at 12:18 am · @ReplyReply to this comment ·
    • Schteve
      Schteve

      @The Gay Numbers:
      I believe he meant it is a new constitution only by the fact that it contains fourteen words that the old constitution did not. That is, it can be new with just a minor–rather than fundamental–change being made.

      May 3, 2009 at 1:54 am · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Schteve

      It’s double talk. It does not matter how many words there are. It’s their impact of the structure of the constitution that is the problem. It renders the document meaningless. One has to wonder, then, if one so chooses, to have an iniative limiting other fundamental rights could one do that in CA? I do not know. Maybe one can under CA’s fucked up Con Law. What if one wrote: Californians shall not have free speech. Those are only 6 words. They are no less fundamental than equal protection. Yet, my what people describe here that would be allowable with a 50 plus 1 vote.

      May 3, 2009 at 12:25 pm · @ReplyReply to this comment ·
    • Chitown Kev
      Chitown Kev

      @The Gay Numbers:

      Which was the point that Ken Starr made, very coldly. And you could tell that the CSC was absolutely disgusted by that line of argument.

      May 3, 2009 at 2:16 pm · @ReplyReply to this comment ·
    • Alex
      Alex

      @JPinWeHo: As California Justice Corrigan stated that this issue is new to the court. Legal scholars nor can we really state what they will do as again this is new to the court. Only time will tell 1 month from todays date is the deadline for the ruling.

      May 4, 2009 at 1:18 am · @ReplyReply to this comment ·

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