Friday Forum: Will the Court Overturn Prop. 8?

It’s that time of the week, when Queerty takes a break from the opinion-making and puts you, the readers, in charge. Each Friday, we invite you to be the pundit on a hot-button question facing the LGBT community and its allies. As always, we expect people to be respectful and considerate of others by refraining from personal attacks. We present the information, you make the decision.

h8460This week, the California Supreme Court announced that on March 5th it will hear arguments about whether to overturn Prop.8. At stake is the right for gays and lesbians to marry – a right the Court described as “inalienable” when it ordered the State to issue marriage licenses to same sex couples last May – as well as the fate of existing married gay couples in California, marriages Yes on 8 supporters seek to annul.

Critics of the Proposition, which includes labor groups, gay rights organizations and Attorney General Jerry Brown, will be represented by Kate Kendell of the National Center for Lesbian Rights. She will argue that Proposition 8 is invalid because it failed to follow the state’s proper method for a revision, as opposed to an amendment. To win that argument, she will have to convince the judges that Prop. 8 significantly alters the fundamental nature of the California Constitution. Alternatively, she could argue the broader argument made by AG Jerry Brown, who has said “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

Supporters of Prop 8 will be represented by Bill Clinton tormentor Kenneth Starr, who is preparing to argue that that the Court must uphold the will of the voters, while dangling the threat of judicial recall over the justice’s heads, which, like voter ballot initiatives, is another quirky fact of political life in California.

Our question to you is not whether the court should overturn Prop 8, but will it? How can the same court which considered gay marriage a fundamental right overturn it in less than a year? Or conversely, how can a court reject the will of the voters, no matter how slim the majority?

We ask you, “Will the California Supreme Court Overturn Prop. 8?”

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  • Jonathan

    Excellent question. My gut says yes.

    Let’s look a bit at the two main legal arguments that have been made to the court in favor of overturning Prop. 8. The first is that Prop. 8 was, in fact, a *revision* to the state constitution, not an amendment. Procedurally this matters because revisions require a supermajority to pass, not a mere majority of votes cast. Substantively this would require the Court to revisit and refine its prior holdings on when a change is a revision and when it is a mere amendment. The only thing that could preclude the Court from revisiting these precedents is the doctrine of stare decisis, or respect for its own precedents. Obviously courts do not like to overturn or overrule prior precedents. But distinguishing them in new factual situations is commonplace. Here, my sense is that a majority of the Court probably would not balk at revisiting and revising its prior precedents in this case. The justices have already held that the state’s equal protection doctrine protects same sex marriage, and it simply must *feel* wrong to them to allow a bare majority of voters to overturn a fundamental right (marriage) for an historically disadvantaged minority.

    The second argument that has been made to the Court is that Prp. 8 is required to further a compelling government interest; it doesn’t, so it should be struck down. In essence this argument would have the Court apply the tests that are used to assess the constitutionality of legislation that discriminates. There are two problems with this argument. The first is that, if it is made as a matter of California constitutional law, it is non-sensical. Afterall, the constitution has just been changed specifically to allow this kind of discrimination. So, it is hard to hold that the new constitutional change must be judged according to the old standards of the constitution. That simply erases the distinction between legislation and constitutional change — and it is hard to see in what provisions of the state constitution the norm of non-discrimination is grounded that could trump the new rule that allows the discrimination.

    There is an answer to this problem, but it leads inevitably to the second problem with the argument: The overarching rule that might prohibit the new discrimination is the *federal* constitution, not the California constitution. That is, one could argue that singling out one small minority to take away its rights by enacting Prop. 8 runs afoul of the federal due process and equal protection clauses. (See Lawrence v. Texas, and the Colorado Amendment 2 case from the 1990s). However, federal courts have not yet recognized a federal constitutional right to same sex marriage — and given the present make up of the U.S. Supreme Court, it is at best a toss-up that they would. (I actually suspect that Justice Kennedy would not yet sign onto a federal right to same sex marriage). Also — if the California Supreme Court holds that there is a federal constitutional right to same sex marriage, it is opening the door for the U.S. Supreme Court to review the decision. I count four Supreme Court justices who would leap at taking that case: Scalia, Roberts, Alito and Thomas — all religious fundamentalist crazies (yes, I know they are Catholic, but they are of the cuckoo-Catholic fundie variety). No right thinking advocate of LGBT rights at this point wants to seek a ruling as a matter of federal constitutional law on this point. After all, the outcome is in doubt, and if the Supreme Court rules that there is no federal constitutional right to same-sex marriage, then we are stuck with a constitutional ruling that can only be overturned by a constitutional amendment at the federal level (good luck with that!) or a change of heart at the Court (it took more than a decade to overturn Bowers v. Hardwick — and that was fast!). Given that none of the hard core conservatives looks likely to retire any time soon, it could easily be a very long slog before such a ruling is overturned.

    So — I see the California Court overturning Prop. 8 and sending the advoactes back to the drawing board because the proposition was a revision, not an amendment. I don’t see them biting at the argument that a compelling interest is required either as a matter of California law, and I really don’t see them inviting federal review of their decision by holding that there is a right to same-sex marriage under the U.S. Constitution.

  • Brian

    Sorry, but I don’t think there’s any chance that the Court will overturn Prop 8. On paper, the revision/amendment argument would seem to favor us, because the test for an amendment is something that is “within the lines” of existing law, and is an “improvement” to the Constitution. Since Prop 8 discriminates against folks with respect to a fundamental right based on what the courts call a “suspect classification” (a suspect class is entitled to the highest level of Constitutional protection), it’s hard to argue that it meets the test of an “amendment.”

    The problem is that the broad language on which our side is pinning its hopes has not really been applied that broadly. Most cases involving what would appear under that test to be revisions have been found to be amendments. What’s a more fundamental right than the right to life? Yet re-imposing the death penalty was seen as just an “amendment.” I think the Court is going to say that even though it clearly thinks we should have the right to marry, it’s constrained by decades of legal interpretation, and must yield to the voters’ decision. Similarly, I agree with Jonathan that the Court isn’t likely to think much of Jerry Brown’s argument, which he kind of just made up. It sounds nice, but it is literally unprecedented. This is just not an “activist” Court, and accepting Jerry’s argument — or for that matter, the revision/amendment argument — would require it engage in judicial activism. The decision in the Marriage Cases was very careful, thorough, and well supported by legal precedent. The Court would really have to go out on a limb here by tossing out Prop 8.

    Also, there’s a warning sign: Justice Kennard’s “no” vote on whether to even take the cases. I don’t think that was because she thought the issues weren’t important enough to merit immediate Supreme Court review, and that the cases should wind their way through the lower courts first (after all, she was willing to grant review on the retroactivity issue). I take that as meaning she doesn’t really think we have a chance. She was part of the majority in the Marriage Cases, so if we don’t have her, we’d have to bring over at least one of the dissenters — which I can’t imagine happening.

    I hope I’m wrong, I really do, but I am bracing myself for a loss.

    On a happier note, though, I don’t think the attempt to invalidate existing marriages has a chance in hell. Again, case law really supports us here; there is a lot of law on retroactivity, and that’s on our side. One of the best arguments is that when CA got rid of common law marriage, the courts did not invalidate existing common law marriages — it just meant that in the future, you couldn’t enter into a marriage that way. The same with changes to the law about how close a relative you could marry. So I think we will at least win that argument.

    And I don’t think it’s about splitting the baby. I have enough respect for the Court to think it will do the best it can, and to look at each of these issues individually. If we do lose, I would hate to see a lot of anger. Obviously, the majority of the Court is with us on the question of whether we should have the right to marry, but if it feels like the law doesn’t justify tossing out the vote, it’s not out of animus or homophobia, but out of a sincere belief that it just can’t do anything more.

  • Kirk Linn

    Hey Jonathan A Federal District Court Just Ruled that DOMA was UNCONSTITUTIONAL

  • MadProfessah

    There are three questions the Cal Sup Court has asked the parties to argue before them:

    (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

    (2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?

    (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

    I think the way the questions are set up, the Court is leaning towards answering 1: No, 2: No, 3: No effect.

    However, I think it’s very possible that they could use Attorney General’s arguments to still invalidate Proposition 8. It’s simply wrong that it would be possible under the California Constitution that minority’s fundamental rights are subject to the whim of the “majority of the people” at any statewide election.

    I certainly hope the Court realizes what a message upholding Prop 8 would send to every single minority group in California.

  • alex the sea turtle

    I just can’t get my head around how the court, which will likely happen, rule that the existing marriages are valid and recognized and not then say that there is something beyond an amendment happening when new couples can’t marry. It doesn’t pass the smell test for me. But I am no lawyer.

    I have seen enough writings that are along the lines of what Brian states that I am feeling uncertain that we are going to get a happy outcome.

    With regards to Jerry Browns argument. Isn’t it based on a similar case where the people voted to amend the constitution to something yucky to minorities regarding housing? Didn’t the court rule in favor of over turning the amendment?

  • stuart

    I just can’t see the court overturning prop 8. While there is precedent in other states for courts overturning amendments on gay marriage on procedural grounds, usually because they deal with two issues instead of one, asking the court to explicitly overturn the will of the voters will be hard.

    The first argument about revisions and amendments, to me, has the best chance. It presents a narrow procedural question to the court that lets it sidestep fundamental questions of democratic legitimacy. That being said, it’s also legally untested.

    The second argument raises troubling questions of judicial activism. In effect, it argues that on matters of minority rights only the judiciary has the power to make changes. This would place minority rights completely outside of the sphere of the voters, beyond even amendments. This would certainly be a novel interpretation of the role of the judiciary, but it would also be extremely broad in its effect. Courts, if possible, generally like to decide cases on narrow procedural grounds.

    The last argument put forward is Jerry Brown’s. He argues that there are inalienable rights given by the state constitution that cannot be overturned without a compelling justification. Again, this is an extremely broad argument. If anything it resembles the penumbras from Griswold v. Connecticut, which foreshadowed Roe. There too the idea of unenumerated Constitutional rights, namely the right to privacy, was key. Brown seems to be arguing something similar, in that there is an unenumerated right, stemming from a basket of other rights, that grants equal marriage. But in Brown’s case this right is protected from the voters, unless there is a compelling justification. This sounds a lot like the strict scrutiny used by the federal courts when dealing with (some) minority rights. It holds that there has to be a compelling government interest to abridge those rights, with certain conditions. This seems to invite or at least foreshadow a federal lawsuit.

    The prospects of overturning Prop 8 in federal court are extremely low. The problem is that even in gay rights victories like Romer v. Evans of Lawrence v. Texas courts have applied a lower standard of scrutiny to gay rights than to other civil rights. We get rational basis, or in Romer rational basis with teeth. This means that a governmental action abridging our rights has to have a rational relation to a legitimate government interest. The Court has taken pains to point out that the protection of marriage is a legitimate government interest, meaning no gay marriage from the Supremes. This is the lowest position on the protection totem pole. Above it are intermediate scrutiny (given to gender) and strict scrutiny (given to race, national origin, and obviously religion). Any federal case on gay marriage would likely have to argue that we get at least intermediate or hopefully strict scrutiny, or that promoting heterosexual marriages is not a legitimate state interest. It will be hard.

    The best bet? Take Scalia’s advice and get gay marriage through democratic means. Failing that, challenging DOMA on a full faith and credit basis might work as a federalism issue. It would likely be the easiest way to get gay marriage everywhere, albiet not on a federal level.

  • Jonathan

    @Kirk Linn: Care to provide the cite to the District Court decision?

  • Jonathan

    @Brian: I agree with how you lay out the issues, and you may well have a better sense of the lay of the land with the California Court. But purely as a matter of doctrine, I don’t see as large a barrier to revisiting the prior rulings on the revision/amendment question as you do.

    One significant difference between propositions that deal right to life/death penalty issues and Prop. 8 is the effect that they have on minority rights. The death penalty is obviously an area in which although a change to the constitution affects fundamental rights, it does not discriminate in its effects. In other words, it is an issue of due process, and not equal protection. Prop. 8 raises a fundamental issue of equal protection, and I’d be surprised (but not too surprised) if a Court that was willing to see the issue in terms of the equal application of fundamental rights to a discrete minority, would also be willing to say that the minority’s rights can be overturned by a bare majority of a popular vote.

    But again, I may well be wrong.

  • coca_cola

    A request – before you post a comment attempting to do legal analysis, can you idiots please indicate if you are a lawyer, a law professor, or at least a law student?? There are a few homos above trying to engage in legal analysis and sound smart but i can’t decide whether to take them seriously or not. If you want to be taken seriously (at least by ME), ESTABLISH YOUR CREDIBILITY UPFRONT.


  • Jonathan

    @ Coca-Cola:

    Without being rude, I think you should reason your own way through this. Even the lawyers here are just guessing about what they think will happen, not what they know must happen. And you can learn a lot about the law by reading through the posts above.

    My guess is that I’m a lawyer, Brian’s a lawyer type, Kirk Linn may be a lawyer, and stuart is a lawyer.

  • coca_cola

    Okay, Jonathan. Hehe. I just realized what I said was kind of rude. I’m going to give all of you guys blow jobs to make up for it. Lawyers are hot! :P

  • Brian

    @ Jonathan — I’m a lawyer “type”? I love that! :-)

    I’ve been a lawyer “type” for going on 19 years now, and was a TA for Constitutional Law way back when, though I’ve never actually practiced in that area. I’ve read the Marriage Cases decision in full, along with all of the parties’ briefs currently before the Court, and several amicus briefs, so if it makes Coca-Cola feel better, I, like Jonathan and others who are posting here, know what I’m talking about.

    Just to address the federal issue: it’s not before the Court, and it’s not going to bring it up. I think there is a pretty strong belief that we would lose at the SCOTUS level, so people have feared literally making a federal case out of this. But I could certainly see the CA Supreme Court telling petitioners that what they are really arguing is that CA Constitution as amended violates the US Constitution, so they need to take that argument elsewhere.

    I really hope I’m wrong (and I rarely feel that way!) but I just can’t see the Court going our way.

    I love the dialogue and competing ideas, though…

  • Forrest

    I am certainly not a lawyer type and I am not optimistic at all. Our hopes of reversal are hanging on a very thin thread. Unfortunatley, the majority of the CA Court on our side cannot rule on what they “think” is right in this case. It has to rule on the law and we don’t have strong empirical history or precedence on our side. If we lose the case hopefully there will have been movement in our favor in Iowa, New Jersey, or New Hampshire by that time to make losing again sting less.

  • illuman23

    Am I the only one still cheezed off that Schwarzenegger vetoed (or didn’r sign) the gay marriage legislation twice? We obviously have the California legislature on our side. Is there any way they could overturn this revision with a new bill?

    This mess is a great example of why the founding fathers did not implement a direct democracy.

  • Jonathan

    @ Coca Cola: Well, I’d have to say only *some* lawyers are hot — and they tend mostly to be in soap operas on TV or in movies.(that is, actors playing lawyers). When I returned to the east coast for law school, I was mighty disappointed in how my fellow law students stacked up in the looks department, compared to folks in California.

    Moreover, sitting behind a computer screen for hours and hours without ever getting sufficient exercise or sunlight does not tend to enhance our looks.


    We’re mostly toads.

    @ Brian: I’ve only taken a crack at reading up on this case, so, as I said, I’m not confident I have a great grasp of the nuances here.

    Correct me if I’m wrong, though, that a counter-proposition to Prop. 8 could be offered at the 2010 elections? If so, I can easily see the Court punting this one back to the political process — at least for the time being.

    In respect of the issue of the retroactive effect of Prop. 8, I have absolutely no idea how this plays out in California law.

  • John K.

    I am a 3rd-year law student.

    I agree with a lot of what I read here. I think this could go either way. I, too, was initially VERY troubled by Justice Kennard’s vote against hearing the case (I still am to a large degree), but it is conceivable that she just thought the case should go to the lower courts first (I read she is big on procedure). Her willingness to hear a retroactivity challenge can be read to make sense, even consider this, because that particular issue needs to be resolved more readily since its implications on families who have relied on the law is more immediate. In other words, resolving whether new marriages can be entered into is not as urgent as resolving whether old marriages are honored.

    When the Court first agreed to hear the challenge, I was thinking about how they might craft a ruling upholding it. I has to be true, after In re Marriage cases, which held that sexual orientation is a suspect class in California just like race, gender, and national origin, that upholding Prop. 8 means that as a matter of California Constitutional law (federal constitution aside) taking rights away from ANY minority group by initiative amendment would be ok. If you take the emotion out of it, I suppose that is certainly fine to say, but does this Court want to go there? Can the Court feel comfortable enough that the US Constitution will act as a sufficient fail-safe against what the Court might consider more “egregious” discrimination (Perhaps, an amendment that says that Mexicans can’t own property south of Los Angeles because of the illegal immigration problem)? I don’t know how the Court goes down that road. It’s pretty clear from the case law I’ve seen cited in the petitioners’ and many amici briefs that the Court has recognized that the California Constitution operates independently of the US Constitution, and provides its own protections. It seems hard for me to conclude that this Court would open such a can of worms by weakening the state constitution’s protections of minority rights so substantially.

    Another thing I thought was that this is not about gay marriage. This is a completely different issue. It is conceivable that you would get an entirely different split in the Court. This seems like the sort of thing where you might actually get dissenters from In re Marriage cases on board. Likely? I don’t know, and I would think probably not. However, what if this case were about an initiative like the one I suggested above (about Mexicans owing property)? Would the Marriage Cases dissenters believe it was judicial activism to hold that such an initiative was a revision? My instinct says not necessarily.

    The most interesting possible outcome I thought of was this: Could we see multiple opinions in this case? Could we see the three Marriage cases dissenters write an opinion that says basically, “Prop. 8 is a mere amendment because, as we said in Marriage Cases, sexual orientation is not a suspect class, and Marriage Cases was wrongly decided in the first place,” completely disregarding the Marriage Cases precedent? Could we then see, say, Justice Kennard write, “Prop. 8 is an amendment even though it takes a fundamental right away from a suspect class. This would be the same outcome if the initiative were about stopping Mexicans only from owning property,” creating the fourth vote necessary to uphold Prop. 8. Then, of course, the remaining three write that Prop. 8 is a revision. This scenario would mean that Prop. 8 would be upheld, but that the Court would not have set a precedent for allowing initiatives that discriminate based on other suspect classes because only one justice would have held that Prop. 8 actually discriminated against a suspect class. Interestingly, sexual orientation would STILL REMAIN a suspect class because only a plurality (the three Marriage cases dissenters, and not Justice Kennard) would have said that it was not a suspect class.

    This seems like the only palatable way (no way is palatable to me, obviously) this case could uphold Prop. 8. I’m interested to see what the attorneys here think of this scenario.

    I would like to note that I am in a class with one of the law professors that wrote an amicus brief in the case supporting the petitioners, and he was in contact with one of the major attorneys for petitioners (I don’t want to drop names, haha), and that attorney apparently told my professor that this is going to be a 4-3 decision, and that it is currently 3-3 with the unknown being the Chief Justice. I don’t know how this attorney would know that, but perhaps it is so. If that is the case, I feel much more optimistic considering CJ George wrote the Marriage Cases decision, and considering statements he made to the press after the release of that decision.

    Let’s hope.

  • John K.


    Schwarzenegger didn’t sign it because he said it was unconstitutional. That is, Prop. 22, which was an initiative statute, could not constitutionally be overturned by the legislature; it would need to be overturned by another initiative statute. He was vindicated because the Court in In re Marriage Cases held exactly that.


    As far as retroactivity goes, it seems almost certain that the Court will NOT invalidate the current marriages. For justices who obviously believe personally that we are right in this debate, regardless of what they believe they have to do legally, they’ve got overwhelming precedent that makes it very easy for them to keep the current marriages.

    And yes, there are already repeal initiatives submitted for approval by the Secretary of State that would overturn Prop. 8 in 2010. I also thought that this could hurt us in court because the Court could just punt. However, one thing that I hope is emphasized is the closeness of this vote on Prop. 8, and that conceivably, this issue could go back and forth for a while. Prop. 8 could get overturned in 2010 by a vote of 50.5%-49.5%. It could be reinstated in 2012 by the same vote in the opposite direction. That ban could be overturned in 2014 by a 52%-48% vote. This could go on for quite a while. Are fundamental rights supposed to be so fickle?

  • Jonathan

    @ Illuman. The short answer is no, if what you are talking about is passing a law to overturn Prop. 8. There is a hierachy of legal authority in this country. It starts with the U.S. Constitution at the top. Generally any rule of law that contradicts or contravenes the U.S. Constitution is null and void. Below that U.S. Constitution is federal law (that is, treaties, laws passed by Congress and signed by the President, federal regulations, and wierd things like interstate compacts — basically treaties between states that are approved by Congress). They trump any other laws, except the U.S. Constitution.

    Below federal law are the laws of the states. State law generally follows the same hierarchy that federal law does, that is, a state’s constitution trumps all other law in the state, except federal law. Then come state statutes, regulations, etc. Below that are laws passed by counties and municipalities. They are generally trumped by all the law above them.

    So — if a change is made to a state constitution, in general, the state’s legislature cannot pass a law to trump the constitutional change. That’s why it’s usually a lot harder to amend a constitution than to pass a law.

    One other point should be made: What is the status of a court decision? Where does it fit in this hierarchy? In essence, court decisions have the status of the law that they are applying or interpreting. So when a court decides a case that turns on interpreting the federal constitution, the decision has — in essence — the status of constitutional law (because it is saying what the constitution means applied to the facts of the case). Of course, the court’s decision can be changed by a higher court, but not by the Congress or the Executive. When a court decides what a federal statute means, it’s decision has the same status as that law (because it is saying what the statute or regulation means in that case). But because statutes can be changed by Congress, Congress can legislate to overturn the court’s decision. This is what happened with the Lilly Ledbetter law: The Supreme Court interpreted a statute, Congress disagreed with the Court’s interpretation, so it changed the statute to reflect what it, and not the Court, meant.


  • JPinWeHo

    @Jonathan: here is a link re: the DOMA issue Unfortunately, the opinions are not precedential, but they do suggest that at least a few of the 9th Circuit judges would decide that DOMA is unconstitutional if that question were presented to them.

  • Bruno

    My feeling has been that the larger the groundswell of support for a ruling overturning prop 8, the more likely it would be. However, I just don’t know if I see 4 of the judges taking that step (I see 2 for sure and possibly 3 or 4).

    However, I could see them come up with some sort of strange “compromise” that no one likes. Like saying that even though prop 8 clearly defines man-woman marriages only as valid, but then saying it still doesn’t usurp their prior interpretation of the constitution. Which might mean that the state would have to dump all use of the word “marriage”?

    If they do uphold prop 8, they’ll have basically taken away any understanding that the courts uphold minority rights.

  • Jonathan

    @ JPinWeHo: Fascinating. It’s no surprise, actually, that Reinhardt would hold DOMA unconstitutional. But that Kozinski is inclined that way is encouraging, although he hardly counts as conservative anymore. New additions to the 9th, such as Jay “Torture” Bybee, place him far more to the center than one might think.

  • John K.

    Bruno: Very interesting. That’s another thing that crossed my mind, that is, that Court saying, “fine, then straights only get Domestic Partnerships too.” However, I think the language of Prop. 8 makes that stance difficult. Since it pretty much affirmatively states that “only marriage between a man and a woman SHALL be recognized…” [emphasis mine], I don’t think the Court would say that the text says that NO marriages should be recognized, or that it was the intent of the people to do that. Since Prop. 8, if upheld as validly enacted, would be the most specific and recent constitutional provision on what marriage is, it would trump equal protection and I don’t think its text provides a sufficient basis for reconciling it with equal protection by holding no marriages to be valid in California. Had the text of Prop. 8 just said “No marriages between persons of the same sex shall be recognized in California,” that would be a totally different scenario. In that case, the provision itself would say nothing about opposite-sex marriages, and so there would seem to be a great argument there for saying, “OK, this specific provision says we can’t recognize same-sex marriages, but it doesn’t say that we HAVE to recognize opposite-sex marriages, and we have equal protection that says we have to treat everyone equally. The only way to satisfy all requirements of the state constitution is to decline to recognize any marriages at all.” If only the text of Prop. 8 were worded that way. It would be HILARIOUS if the Prop. 8 supporters inadvertently banned themselves from getting married.

  • petted

    @Jonathan: The 9 Circuit Court Ruling he’s talking about wasn’t case it was an internal Employment Dispute Resolution so it doesn’t provide precedent. (Not sure if the other poster ever got you the link and there’s some rather dense ‘postage’).

    Below are the relevant Court Orders to the 2 ‘cases’ that overturn/circumvent DOMA in regards to married court employee’s health benefits.
    This is the one where DOMA is said to have an unconstitutional effect.
    This one the judge minced words to avoid constitutional questions.

    I was wondering though since neither of the judges choose to avoid a decision on the disputes, by deeming the marriages of court employees involved in the dispute resolutions invalid, would that provide any persuasive force to the California Supreme Court?

  • Matt (the other one)

    I’m not a lawyer, but didn’t this court say, in the decision overturning the ban, that marriage is an inalienable right that cannot be decided by majority vote? If I’m recalling that correctly, wouldn’t it be hard for the court to now uphold a marriage ban that was decided in just that way?

  • John K.

    Matt (The Other One): The Court was careful in the first marriage decision to say that the fundamental right to marry cannot be taken away from same-sex couples by the STATUTORY initiative process. Prop. 8 was enacted using the constitutional amendment initiative process. However, since the question of whether the people could use the amendment initiative process to ban same-sex marriage was not before the Court in the first case, they simply did not rule on that issue, so it remains open, and not it will be decided in this new Prop. 8 case.

  • DonG90806

    @Kirk Linn: It was not a federal district court, but two different 9th circuit court of appeals judges in two separate cases. One of the cases can be found at

    These rulings apply only to the cases involved and are of no precedential value; however, it gives reason to believe that the federal Defense of Marriage Act could be overturned.

    Professor Don Gaudard

  • coca_cola

    Oh God. You guys are allll so smart it’s making me so…horny! I need to sit on a lawyer’s lap now!

  • DavidiNSeattle

    My prediction is we are going to see another 4-3 vote and Prop 8 will be overturned. One has to take into consideration that all the arguments to ban gay marriage with Prop 22 eventually fell flat on a crown of thorns. With Ken Starr right out of the Christian cracker jack box from Pepperdine, Prop 8 supporters couldn’t have picked a more suitable walking crucifix.
    There is just no legal reason to uphold arrogant religious flatulence, which is at the base of this now seemingly hostile take-over of the California constitution by a well staged bank rolled manipulation by polarized Catholics and Mormons.
    Though it may not be held up to the magnifying glass in the suits, it is still the basis for the existance of prop 8.
    The Supreme Court must take separation of church and state into consideration when dealing with minority rights and constitutional law.
    I also predict we are going to see a fast turn around on the ruling, within 45 days max.
    I also predict coca-cola will NOT find a lawyers lap to sit on. Sorry coca.

  • lakshmimittal

    you’d think the court would adopt a teleological approach and help facilitate necessary social reform. californian politics is so fucked up! how can they legalise then illegalise! how can they recall their governor on a whim! how is the Terminator their governor!


    (we just do things differently in the UK!)

  • coca_cola

    I WILL find a lawyer’s lap to sit on. And when i do, it’s gonna be FUN!

  • John K.

    Anyone have thoughts about my post from Feb 6, 4:25 PM, about the Court writing three opinions and striking down Prop. 8, but upholding sexual orientation as a suspect class while also not necessarily exposing other suspect classes to similar initiatives?

  • Brian

    Sorry, Coca-Cola, but the only man who get’s to sit on my lap (among other body parts) is my still-husband.

    And again, on the merits, I think the Court is just going to view its hands as tied. Of course people shouldn’t be able to take fudamental rights away from a suspect class, but there is an argument that the California Constitution allows them to do just that. And the problem with the “slippery slope” argument (who’s next? African-Americans? Hispanics?) is that other minorities have much stronger protections under the U.S. Constitution. It’s doubtful that a proposition to take rights away from a federally protected minority group would even make it onto the ballot, because it would violate, on its face, the U.S. Constitution. The U.S. Supreme Court hasn’t found that gays and lesbians are a suspect class under the U.S. Constitution, so our rights — and the loss of those rights — are really dependent on California law, and the California Constitution.

    So I continue to think we’re screwed. I would just love to be wrong. I do agree that the Court will probably issue its ruling fairly quickly. If it goes our way, it would be nice if it were on the first anniversary of the marriage cases, in May.

  • John K.

    Brian: It’s true that the federal constitution protects most other minority groups, but California’s case law makes it very clear that the state constitution is independent and doesn’t rely on the federal constitution as some kind of backup. I can’t see this Court writing, “well, we know this decision severely weakens the protections in the state constitution, but that’s ok because the federal constitution still acts as a backup.” It just doesn’t mix with the proud history of the Cali constitution.

    I would also note that the Cali constitution protects gender as a full suspect class, unlike the federal constitution, and laws discriminating based on gender must survive strict scrutiny, not the intermediate scrutiny the US Supreme Court applies under the US Constitution. So, there is real room here for abuse of this initiative process with no federal backup.

    That said, I still don’t think we’re necessarily in for a win.

  • Brian

    John –

    You’re right, of course. I’m just talking about what I anticipate the Court’s reponse will be to the “slippery slope” argument. I don’t think anyone really believes that affirming Prop 8 is going to cause these parade of horribles where people try to amend the California Constitution to discriminate against other minority groups. The existence of federal protections would, I think, be reason enough to block any such initiatives from even being certified for the ballot, so I don’t think we’re likely to see Prop 8 type initiatives targeting other minority groups. So I just don’t think that argument is going to have any traction.

    Yes, we’re special.

  • John K.


    You absolutely may be right. Of course if you are, then the Cali Supreme Court has to admit that the Cali Constitution itself, in the absence of the US Constitution, is a weak protector of rights, much weaker than it has been played up to be in past case law. Maybe they will, I don’t know. Obviously we’re all hoping they won’t have to because they strike down Prop. 8.

  • Not A Lawyer

    Just a few thoughts from my untrained mind…

    If gender is a full suspect class in CA, then isn’t prop 8 invalid because it discriminates based on gender and not just sexual orientation? It says right in its wording, one man and one woman. It doesn’t let a woman do something that a man is allowed to do, i.e., marry a woman. Is this a stretch? I dunno, everyone is stretching at this point…

    Also, depending on what the ruling is, do you think one of the justices will write something that basically says “sorry I couldn’t help you this time, but go about it like this next time and we’ll be able to help you,” i.e. suggest that someone propose removing the word “marriage” from all CA law.

    And lastly, to Jonathan…so in theory, if Prop 8 was invalidated the legislature could legislate to change whatever the court used to make its argument? But could the reverse happen? Could Prop 8 be upheld and then the legislature do something about it? Because it seems to be that it could only be changed by another amendment coming from the people.

  • Flex

    Could I float an amendment to ban prop8 supporters from marrying in California? Prop8 supporters are not a leglly protected class.

  • Dana Chilton

    @John K.:

    It is my firm belief that the court will chose one of two options. The first being to overturn prop 8 by ruling that the power of the initiative process is not sufficient to overturn equal protection; as Jerry Brown pointed out, the Legislature never had that power, so, the people were never given that power. The only way equal protection can be removed is by removing it through a constitutional convention (ie. changing the constitution itself)
    The second being that the equal protection can still be upheld. The court in “re marriage cases” ruled that the term marriage was not a fundamental right, but, that whatever institution the state had for what marriage is must be applied to all persons regardless of sexual orientation. The courts could easily find that the people chose to ‘merely restore the definition ‘ (as interveners contend) of a word; having already ruled that the word itself was not at question, the court could now rule that the newly defined term “marriage” may not be used by the state because it now discriminates. Either Domestic Partnerships or some other institution must be used for all couples receiving a civil license from the state. Here’s the beauty of such a ruling: New Jersey law states that same sex marriages performed in Mass or Conn are recognized and changed to Civil Unions in NJ. California could do the same; no “marriage” licenses would be given in the state and any “marriage” performed outside the state would be changed to another institution in CA. “Married” couples in CA would no longer receive federal benefits and almost no other state would recognize their unions because of each states “DOMA” laws. In effect, all unioned persons in CA would be in the same boat. All that talk about domestic partnerships being equal..and civil unions not taking away rights would go away and we would see the repeal of federal DOMA, state DOMAs, and prop 8 quicker than anyone could imagine.

  • John K.

    Not a Lawyer: Unfortunately, the Cali Supreme Court ruled in In re Marriage Cases that the same-sex marriage ban did NOT discriminate based on gender, but should more accurately be thought to discriminate on sexual orientation. I re-read that section of the opinion the other day because it never made logical sense to me for the exact reason you stated: a woman cannot do something a man can do: marry a woman. In re-reading the case, it seemed the Court was basically saying that as a matter of law (and not necessarily logic) we are going to consider this discrimination based on sexual orientation and not on gender. I still disagree with that particular part of the decision because I think this is obviously gender-based discrimination (although, as the Court notes, gender discrimination and sexual orientation discrimination are necessarily related). I don’t think it matters much except that it is more tenable to discriminate on sexual orientation than on gender from the public’s standpoint.

    The “Domestic Partnerships for all” argument is interesting. I’m going to discuss it in my next post in response to you and to Dana Chilton.

    Well, yes, if the Court invalidated Prop. 8, the legislature could refer it back to the people by a 2/3 vote to reinstate it (assuming the Court simply rules that Prop. 8 is an attempted revision, not a simple amendment, and the Court does not take Jerry Brown’s argument off the deep end and say that there is NO process in California for taking away inalienable rights without a substantial state interest). Based on its composition, it’s pretty clear the legislature will NOT refer this back to the people any time soon, thank goodness.

    Unfortunately, if the Court upholds Prop. 8, there’s not much the legislature can do. It cannot unilaterally repeal Prop. 8 because, as you noted, that would take another constitutional amendment. The only thing the legislature can do is refer the question of repeal back to the people again by a 2/3 vote (a 2/3 vote is the only way the legislature can refer revisions OR amendments to the people). Even though the legislature is highly supportive, I would guess they don’t have quite enough votes to do that. However, if the legislature could pull it off, the people would then have to vote by a majority to repeal Prop. 8.

  • John K.

    Dana Chilton:

    Well, I certainly think your first suggested possible outcome is a possible outcome, and an outcome I would hope for.

    I’m not so sure about your second one though. Again, it would be very interesting, and I’ve considered it before. However, I think the text of Prop. 8 works against us here. Prop. 8 says: “Only a marriage between one man and one woman SHALL be valid or recognized in California.” [emphasis added]. First, I think this might overturn/clarify the portion of the Court’s Marriage Cases decision that said the word “marriage” was not necessarily a constitutional right. Now, the constitution says “marriage SHALL be recognized” between a man and a woman. For this reason, I think it would be difficult for the Court to say, “OK, if gays can’t marry, no one can; DPs for everyone.” It would be going against the plain text of the measure.

    Now, had Prop. 8 instead said, “Marriages between persons of the same sex shall not be valid or recognized in California,” I’d say we have a VERY strong argument for DPs for everyone. In this case, the text itself does not call for the affirmative recognition of opposite-sex marriage, only the banning of same-sex marriage. A canon of interpretation is to reconcile seemingly competing laws and provisions where reasonably possible, so in this case it would certainly be reasonable to reconcile my hypothetical alternative Prop. 8 with the equal protection clause by saying “OK, no marriage for gays, no marriage for anyone. That means everyone is equal, and we’re still following Prop. 8.” I just don’t think this reconciliation works the same way when Prop. 8 says opposite-sex marriage “shall be recognized.”

  • John K.


    I do think that if there were to be a serious movement to have the state stop recognizing anyone’s “marriage,” and only recognizing DPs for everyone, you would see a lot of unhappy Christians and other religious folks. They want the government to recognize their marriages just as much as they want the government not to recognize gay marriages.

    I read a very interesting article yesterday about how the gender-neutral civil union law in France went from something like 40% use by straight couples to 90% use by straight couples. That is, of all civil unions in France, 90% are straight couples. I don’t know what the comparisons are with marriage, but it seems to me that this confirms the conservative arguments for gay marriage, i.e., that creating a parallel institution is actually what cheapens and threatens marriage, not extending marriage itself to gays. As it stands, civil unions in France have caused fewer straight people to get married, which is exactly what gay marriage foes supposedly hoped to avoid in the first place.

  • Dana Chilton

    Hi John:

    “Only marriage between a man and a women shall be valid or recognized in the state of California”. The courts look at the intention of a law or initiative when making rulings. Those who advocated prop 8 advocated the ‘protection of marriage’ from a ‘re-definition’ by ‘activist judges’. Simply “restoring” marriage to it’s original meaning. I don’t believe it would be interpreted by the courts as meaning that the state would be forced to recognize marriages from all states, but, instead make that word ‘marriage’ off-limits to anything other than a man and a woman.

    You’re completely right about an unhappy Christian right- they’ll generally be unhappy until some kind of Pat Robertsoneque type sharia law is imposed on this country. The blending of gov and religion is so pervasive in fundamentalist churches and conservative catholic churches that changing all marriages to domestic partnerships would be viewed as a violation of their religious rights somehow. Allowing Gays and Lesbians access to civil marriage is an ‘assault on freedom of religion’, taking tax exempt status away from churches is an ‘assault on freedom of religion’, (even though Jesus instructed his followers to pay taxes), workplace protections for minorities are an ‘assault on freedom of religion’, demanding that a civil employee not discriminate according to the law is an ‘assault on freedom of religion’ raising taxes is a ‘sin’, socialism is ‘evil’, stopping illegal immigration is somehow a Christian issue..etc..

    Having been a former religious-rightist changing marriages by the state to a domestic partnerships would cause all kinds of problems with their logic and confuse them. They cannot reconcile their belief that God demands couples to get married when the state calls it something else? Divorcing same-sex couples causes the same problem; divorce is a sin, so, to reconcile their faith with the government they refuse to recognize the marriages of same-sex couples; they use scare quotes for “marriage” and act as though they don’t exist in reality that way when they force the state to divorce these couples it’s not really divorce.

    I agree with your logic on the parallel institution. In their quest to ‘protect marriage’ those on the right are undermining that very same institution. The argument made by the right that gays are too promiscuous to be allowed marriage is the same failed logic. The denial of marriage itself is a major cause of much of the promiscuity they blame us for. Marriage promotes stable families, they take that right away form us then blame us for the consequences of their actions.

  • John K.


    I agree with pretty much everything you said. I think you hit the nail right on the head.

    We’ll just have to wait and see what the Court does I guess. I listened to the Prop. 22 oral arguments on the internet, and I’m DEFINITELY going to be listening to the Prop. 8 oral arguments if I can find them.

  • Lani

    I’m a newby on this board and since I’m not a lawyer (or lawyer-type), I won’t venture into that area of discussion.

    But, a statement by Dana Chilton caught my eye. Dana said “The denial of marriage itself is a major cause of much of the promiscuity they blame us for”. I’m sorry, but that just doesn’t make sense. If two people want to commmit to each other, they won’t care what their relationship is called or who recognizes it. Monogamy is not contigent upon marriage. Marriage is not some magic piece of paper that will suddenly make one monogamous.

    I suspect that those who are promiscuous before marriage will be afterwards as well. To me, promiscuity simply means that a person is unwilling to commit to another.

    Putting it another way, heterosexuals don’t actually need marriage. They were forming pair bonds (and monogamous relationships) long before the “institution” of marriage was dreamed up. It was the rearing of children brought about the necessity of forming stable relationships.

    Black slaves in this country were actually forbidden to marry but that didn’t stop them from forming monogamous “marriage-like” commitments to each other. So, back to my point about promiscuity amongst gays, simply appropriating the word marriage will not solve that problem.

  • John K.

    Lani: Monogamy may not be contingent upon marriage, but if it is ingrained in a gay child’s head that he or she is not fit for a monogamous relationship, it becomes that much harder for that child to learn to want to be in a monogamous relationship.

    Furthermore, you contradict yourself right in the third paragraph of your post. “It was the rearing of children [that] brought about the necessity of forming STABLE RELATIONSHIPS.” [emphasis added]. If your entire point is that stable relationships are EQUALLY achievable without marriage, then why was marriage necessary for the rearing of children? There’s a difference between forming pair bonds and committing to each other legally, to the point of putting yourself in financial harm’s way if you cheat on your partner (they can divorce you and take your assets). Perhaps this is a cynical argument to make, but it is what it is. You cannot deny that a legal marriage encourages monogamy more than simply deciding to try to be monogamous does.

  • Dana Chilton

    @John K.:

    You’re awesome John..

  • John K.

    @Dana Chilton:

    Thanks :-)

  • Dana Chilton

    [email protected]John K.:

    What, if any, effect will our legislature’s passing of a resolution making it the official policy of the state that prop 8 must be overturned? Courts often view the opinion of the state in high regard and use their views in court opinion. In this case we have an Attorney General who will argue that the state’s own law must be struck (he’s the same one just one year ago defended prop 22 in front of the same justices) This is a nearly unprecedented move that says the executive branch of our government does not support this revision. Possibly this Thursday we will have a completely unprecedented call by our legislative branch to have a law struck down by the court. Any thoughts?

  • Chris

    Monogomy? Promiscuity? Is that what this is really about?

    I don’t think sweeping generalizations are in order here. I say that because as a 40 year old gay man who has lived and worked in LA and New York for the past 20 years, I have had 9 sexual partners in my entire life. And I know all of their first AND last names. And I loved each of them. That is just the way my soul operates. I need friendship before sex. Yet I am also old enough at 40 to realize that when almost any Heterosexual person meets me, they will automatically assume that I have had hundreds of anonymous sexual partners and have had every STD in the book, when in fact, I have never even had a single STD.

    My point is, Gays & Lesbians share the same behavior scale as Heterosexuals. We run the gamut just like they do. If you do a little research, you will find that 60% of MARRIED Heterosexual men have sex outside their marriages. It’s up to 40% for MARRIED Heterosexual women. In other countries, those numbers increase. I think, therefore, a more appropriate statement would be that HUMAN BEINGS are promiscuous. And according to the statistics, Heterosexuals really have no business judging Homosexuals in that regard. They scold and shame US that some Gay couples decide to have ‘open relationships’ but somehow feel that it is OK for THEM to do it, as long as they lie to each other about it? Is THAT the sanctity of marriage thing they all keep screaming about? Take a look at abortion statistics in the United States alone. (google it) While I 100% percent support and would protect a woman’s right to make her own decisions about her body, one might take a look at our abortion statistics and conclude that it is Heterosexuals, really, who are having monogomy issues in far greater numbers than Gays & Lesbians. Also, Heterosexuals currently account for 70 – 80% of all HIV cases worldwide. And they seem to be ignoring that in order to avoid the shame of what they still believe to be ‘the gay’ disease.

    I realize I got a little off topic there. Sorry. I just think that bringing monogomy into the ‘gay marriage’ equation is a little risky and even skewed toward being unfair when you look at Heterosexual monogomy and it’s failure rate. Are Gays & Lesbians held to a higher standard of behavior by Heterosexuals, and if so, why are they not addressing the manner in which THEY have ‘hi-jacked’ marriage. Gays & Lesbians certainly could not treat the instute of marriage with less respect and sanctity than have Heterosexuals. So you really have to wonder. What are they REALLY fighting for?

    WE are fighting for EQUALITY, brothers & sisters. And as such, we will reserve the right to suck at Marriage just as much as the Heteros do. But we absolutely should NOT be expected to be held to higher expectations of marital success than Heterosexuals for merely being Constitutionally and Lawfully given what rightfully has been ours all along.


  • Dana Chilton


    No one here, including myself, believes that gays and lesbians are innately promiscuous. The question of monogamy was brought into the equation decades ago. The right-wing fundamentalists who were directly responsible for prop 8s passing in November have long claimed that gays and lesbians aren’t ‘fit’ to be married. I read on a Mormon blog a week or so ago how gays don’t understand marriage. I sat through a sermon (my last time at that church) where gays were accused of being little better than animals who can’t control themselves. All of these lies were created from and by their circular logic. “God demands marriage before sex…and gays can’t get married so they can’t have sex” They claim that marriage promotes stable families, and it does, yet they deny us that institution while blaming us for not having their type of commitment to each other. Gay and Lesbian children, for the most part, do not have the benefit of growing up with a society that encourages openness… Dating at a young age… honest discussions with friends and family… a hope to one day marry and share children. Growing up without that hope is detrimental and it promotes subversive behavior.. it’s THAT BIGOTRY that promotes subversive behavior, not being gay. How many meth addicts, homeless gay teens, and ‘down low “Str8″‘ closet cases do we have to meet before we call these narrow-minded religious bigots out for their actions?

    You’re right Chris, what ARE they fighting for? They are fighting for nothing less than pushing us all back into the closet. They want to never hear or see us again. As long as people like you and I and John are fighting back and speaking up, they will never succeed. We are fighting the just cause Chris, we will win.

  • John K.

    @Dana Chilton: Well, I don’t think it can hurt. It’s certainly not going to be the deciding factor, but it certainly helps that both the executive and, as of yesterday, the legislative branches of the government oppose Prop. 8. The Court still gets to make the final decision though, and if it decides the law is not on our side, I don’t think it is going to overlook that just because the other branches oppose Prop. 8. The good thing here, in my opinion, is that this is a close call. Since it is a close call, little things like this become slightly more important.

    Bottom line, I think there is plenty there to justify the Court’s invalidating Prop. 8. All we can really do is wait and see though.

  • Dana Chilton

    @John K.:

    Well John, I no longer believe the court will invalidate Prop 8. The hearing was pretty disheartening. Kennard practically told us how she will vote and unless we can get Corrigan on our side there really isn’t a chance. Maybe some good will come from this. Justice George made a good point, it’s too easy to amend our constitution. In 2010 we will see a repeal of prop 8 on the ballot probably put there by the legislature. Hopefully we will also see an initiative to make changing our constitution more difficult.

  • John K.

    @Dana Chilton:

    Yeah, I listened to just about the whole argument yesterday. Not good. Kennard’s gone. George is probably gone. I think Moreno and Werdegar are still with us. Chin, Corrigan, and Baxter didn’t speak quite as much, but they certainly weren’t strongly with us. The only thing that gives me the smallest glimmer of hope is that Corrigan actually asked some questions that seemed to hint she was at least open to the argument. And Chin asked both sides about the Court mandated DPs for everyone, gay and straight, to remedy the situation, though that outcome is not likely considering the other justices didn’t talk about it. Bottom line, not looking good at all.

    I did have a conspiracy theory come to me yesterday, lol. What if the justices all (or most) decided that they needed to overturn this because it would just have bad implications for the future of minority rights. But they were afraid of recall or ouster at retention elections. So, they agreed that Kennard and George, the two more high profile justices in the majority in the first case, would switch sides, and not only would they switch sides, but they would advocate fiercely for upholding Prop. 8 during oral arguments. Then, Corrigan and Baxter (or Chin) would sit and be fairly quiet, but would also switch sides to maintain the 4-3 balance for overturning Prop. 8. Think about it, who would the right wing target for recall? The justices that voted to overturn Prop. 22, but not Prop. 8? or the justices that voted to overturn Prop. 8, but not Prop. 22? there would be so much disagreement as to which justices were to blame that none of them would face a serious threat. And we have no idea what goes on behind the closed doors of the Supreme Court Chambers. Maybe this kind of thing goes on all the time. Collective decision-making, and then political theater in the actual arguments and decision splits.

    Anyway, a man can dream.

  • Dana Chilton

    Intersting [email protected]John K.:
    Interesting theory John. Maybe it’s true :)

    I still hold out hope that Corrigan will vote to overturn prop 8. I heard someone mention the other day that Kennard was just being her usual self during oral arguments but will ultimately vote to overturn, perhaps persuaded by justice George that it actually IS the obligation of the court, to preserve justice, to limit the people’s right to amend the constitution.

    Perhaps not. Still, there is 2010 and we have a promise by the legislature to get an amendment to undo prop 8 on the ballot.

  • John K.

    @Dana Chilton: Well, I listened to the Prop. 22 arguments last year as well, and I don’t remember Kennard being quite so confrontational. Obviously, it would be great if she eventually voted to overturn Prop. 8. Again, I think Ken Starr’s unashamed argument that the people can enact any amendment they want, including taking away free speech rights or even taking away DPs from gays and not letting us have any rights at all hurt him. He should have tried to stay away from that, distinguish it, or at least be less blunt in his argument. That can’t sit well with the justices.

    We have a promise by the legislature to get an amendment to undo Prop. 8 on the ballot? That would take a 2/3 vote I believe (even for the legislature to refer an amendment rather than a revision to the people). I didn’t think they had the votes, and I never read about that. Maybe you just misspoke? It would be AMAZING if the legislature were going to get this back on the ballot because it would save us a tremendous amount of time and money collecting signatures.

    I do know there are initiatives in the works to overturn Prop. 8 in 2010, but they are not being done through the legislature, but by private citizens and organizations. One of them was cleared yesterday for signature collection. That one would repeal Prop. 8, remove “marriage” from California law altogether, and provide DPs for everyone, gay and straight. I personally would rather everyone be allowed to “marry” in the eyes of the government, but I could live with everyone having “DPs” instead. As long as everyone is treated equally, I consider the rest is a policy decision that is proper for legislative or popular decision-making. Funny, though, that Frank Schubert of Yes on 8 said that it was “fundamentally dumb” to take keep everyone from marrying, and that the initiative wouldn’t get far. Wonder why it’s fundamentally dumb considering their argument that marriage is a religious institution that government shouldn’t interfere with. Seems actually pretty reasonable to then say that the government should stay COMPLETELY out of it. Anyway, we shall see what happens…

  • Dana Chilton

    @John K.:

    I believe that getting an amendment on the ballot only requires a simple majority of the legislature. It’s either a majority of the legislature or signatures equal to the number of 8% of those who voted in the last election for governor. The president of the senate has promised to get a legislative amendment to repeal prop 8 on the ballot in November.

    Frank Schubert doesn’t think his argument is dumb because he’s an idiot. If the Catholic church had its way no marriage performed outside the Roman Catholic church and between two catholics in good standing would be recognized. They believe they have 2000 years of history and God on their side. Mormons believe they’re married for eternity if they marry in the Temple. Since they thought it unnecessary to pass laws defending ‘marriage’ do they feel it necessary to get a special ‘eternal marriage’ license?

  • John K.

    @Dana Chilton: Article 18 Section 1 of the California Constitution says:

    “SEC. 1. The Legislature by rollcall vote entered in the journal,
    TWO-THIRDS of the membership of each house concurring, may propose an
    amendment or revision of the Constitution and in the same manner may
    amend or withdraw its proposal.”

    It must then be voted on by a majority of the electorate. Here is a link to the entire Article:

    Are you aware of a different part of the California Constitution that overrules this part? Also, is it public knowledge that the president of the senate has said he would get an amendment on the ballot in November or is it just floating around out there? I conduct just about every search you can imagine for gay rights in the news several times a day and I never heard anything about that (I did email someone over in Cali a few months before the election about the possibility of the legislature putting the question back on the ballot by a 2/3 vote, but I didn’t hear back from whoever that was. It seems to me they wouldn’t have the votes to do that though).

    I agree, Frank Schubert is an idiot, but then again, so are almost all of the people on his side of this debate.

  • Dana Chilton

    @John K.:

    It may be that there is a 2/3 rule; however, it seems that only applies to revision.

    I personally heard the senate president make the promise.It’s not just conjecture.

    I agree.

  • John K.

    @Dana Chilton: Well, that section of the constitution I posted says it applies to both amendments and revisions, but if you personally heard him promise it, then maybe there’s something I’m missing. Either there is a part of the Constitution enacted later that overrules that section regarding amendments or maybe he thinks he actually might have the 2/3 vote necessary to refer it, though that seems unlikely.

    When did he say that? Are you sure he was referring to an actual repeal or could he have been talking about the non-binding resolution that the legislature passed a few days before the Prop. 8 oral arguments saying that it believed Prop. 8 was a revision?

  • Dana Chilton

    @John K.:

    I can’t remember the exact date; it was more than likely in December. He was referencing a future ballot initiative in 2010. The words were something to the effect that if the supreme court did not fix prop 8, then the legislature would put in on the ballot for a vote in 2010. Also, it’s interesting that that senators have begun the process to change the initiative process; from the second hand information I received it seemed as though the legislature could make this change by themselves. Of course, this makes sense because it was the legislature that gave the people the power to begin with in 1911.

    So, John.. I’ve been thinking. I re-watched oral arguments. Two justices seem certain to overturn prop 8- that leaves only two more. Justice Kennard will not vote to invalidate prop 8, neither will Baxter. The other three, however, may surprise us. Justice Corrigan asked, several times how petitioners wanted the justices to define a new rule regarding revisions AND seemed inclined to do so. Her ruling in the original marriage cases merely said that she believed that people should be allowed to make the choice. Now, however, same sex marriage rights have been ruled as constitutionally protected. She’s a very smart woman. She seemed to understand what Kenn Star was advocating and she didn’t seem to like it very much. Justice Werdegar said “this is a new day”- very encouraging. Justice George asked Kenn Star something very interesting. He asked if the people could do away with the right to free speech and Kenn Starr Said yes. This question was directly related to the AFL-CIOs claim that their rights would be at risk…their right to freedom of speech that is not protected under federal law. I think justice George may vote to invalidate prop 8. Justice Chen may not buy the revision argument but he seemed to advance his idea that civil unions for all was a good remedy. He may ‘concur’ in a decision to overturn prop 8. While all this is conjecture, it says something that the justices took the case, fast tracked it, and took immediate jurisdiction on prop 8’s validity..not just the issue of the marriages. While i’m not holding my breath, This could be:

    Chief Justice Geroge- Overturn
    Justice Werdegar- Overturn
    Justice Moreno- Overturn
    Justice Corrigan- Overturn

    Justice Chen- Concur

    Justice Kennard- Reject petition
    Justice Baxter- Reject Petition

  • John K.

    @Dana Chilton:

    Interesting, well, I certainly hope the legislature has the votes to put it on the ballot itself in 2010; it would save a lot of time and money collecting signatures. Now, are you saying that they have already begun trying to change the initiative process? Again, it’s part of the constitution, so they would have to remove it by amendment or revision (maybe revision since it could be “changing the governmental structure”). In any event, it wouldn’t matter whether a revision is required if the legislature was doing it anyway because the same 2/3 is required to put an amendment or a revision on the ballot. Where I think you’re wrong is that it would then have to be voted on by the people by majority vote. The legislature can get the question on the ballot by itself, but it can’t change the constitution by itself.

    I would agree with you that Chief Justice George seemed more undecided than Justice Kennard, but I still wasn’t too hopeful with him. I DEFINITELY agree that Ken Starr’s arguments made some of the justices extremely uneasy. I also was struck by Justice Corrigan’s asking those questions and thought that she seemed possibly inclined to overturn Prop. 8. It’s true, this IS a different issue than the Prop. 22 case. Even though Corrigan dissented there saying that sexual orientation should not be a suspect class and the will of the people should be respected, that doesn’t mean she is ready to do away with ALL constitutional protections for minorities. I don’t remember in what context Justice Werdegar said it was a new day, but she was in the majority in the Prop. 22 case, so we want here to be in the same day, haha. In any event, she and Justice Moreno seemed very inclined to strike down Prop. 8.

    I was thinking something similar with Justice Chin, but different enough to make a big difference. I think he might concur in UPHOLDING Prop. 8. He might say, it’s clear that Prop. 8 has to stand because it’s an amendment, but I think we should take this a step further to harmonize the two different provisions in the constitution (equal protection and Prop. 8) by allowing on DPs (civil unions, whatever) from here on out for everyone. However, there won’t be other votes for that, so his vote will pretty much only count as a vote upholding Prop. 8. I think that’s more likely than a vote striking down Prop. 8 that says he would rather uphold it and declare DPs for all.

    So, again, it’s gonna come down to George, Corrigan, and I’d say Baxter MIGHT be a wild card as well. He didn’t say much, and again, this is a new day and a new issue. We have to remember that we are talking about doing away with ALL “activist judging.” Now that I think about it, it might be too good an opportunity for a conservative justice to pass up… Anyway, we need two of those three:

    Moreno- Overturn
    Werdegar- Overturn

    George- Too close to call
    Corrigan- Too close to call
    Baxter- Probably Uphold

    Chin- Uphold (concurring with DPs for all argument).
    Kennard- Uphold

  • Dana Chilton

    @John K.:

    I don’t really think I’m wrong necessarily with regards to changing the initiative process. I honestly don’t know what would be required for it to happen. Members of the Courage Campaign have been discussing recent activity in the house which would end up restricting the initiative process. Whatever ultimately has to happen the issue is being discussed which is a very good sign of things to come.

    Did you have the opportunity to watch any of the interviews with Justice George after the Marriage Cases was decided? The Marriage Cases was very personal for him. He said that he looked out his window and saw that his ruling had very real and profound impact on people’s lives and that he knew he had done the right thing. In the prop 8 oral arguments he brought up the issue of adoption and if that right can be taken from gays and lesbians and Kenn Starr said yes but that a law like that would not ‘stand’. George knows what happened in Arkansas.. he knows that Kenn Starr is full of Sh*t.. I believe that for the sake of justice, basic fairness, and due process of law he will vote to overturn prop 8; prop 8 being an improper revision.

    I really thought justice Corrigan’s line that the justices “would find a way” to ensure justice if confronted with a constitutional crisis was brilliant.

    You could be right with regards to Justice Chin. However, he referenced Domestic Partnerships for all in light of that ‘solving the problem’… he sees the inequality problem as needing to be solved. Despite his decision in the marriage cases, once decided, Gays and Lesbians did have a constitutional right to marry and he respects that. He may want come to the conclusion that there are two solutions. Either overturn prop 8 or mandate Domestic Partnerships for all. If the majority choses not to do the latter, he may concur with a decision ‘solving’ the issue by striking down prop8. Either way…

    Interesting argument for Baxter. I can see that happening… again, very encouraging!

    Here’s where I see it being decided:

    Chief Justice George- Overturn
    Justice Werdegar- Overturn
    Justice Moreno- Overturn
    Justice Corrigan- Overturn

  • John K.

    @Dana Chilton:

    Well, talking about changing the initiative process is definitely a good sign with one caveat: If the Court upholds Prop. 8, we need the initiative process to overturn it, so making it harder to change the constitution before Prop. 8 is gone is not good.

    I read some of the interviews with Justice George, and I remember him talking about looking out his window. He also said he remembered watching African Americans being discriminated against growing up and that he thought about that a lot when making his decision. These things gave me a lot of hope going into oral arguments, but I’m still not thoroughly convinced that he thinks he can continue in that position and apply it to this case. Again, I hope you are right. I hope he keeps in mind that the US Supreme Court has not held adoption to be a fundamental right, and that it has not held sexual orientation to be a suspect class, so banning gays from adopting might be ok under the US Constitution. I certainly think the plaintiffs have the better of the arguments here. We just have to see how George plays this. There’s a lot of pressure on him from all different directions, things he should consider and things he should not, but might (his retention election in a couple of years; Rose Bird). Most judges take pride in being able to put aside their personal beliefs as judges to rule in a way they don’t like, but they think is correct legally. If Chief Justice George thinks upholding Prop. 8 is the correct LEGAL decision, he will probably value that over making the correct MORAL decision. Again, I think the plaintiffs have the better of both arguments, but unfortunately, I’m not a Supreme Court Justice.

    See, I took Justice Corrigan’s comment a completely different way. I took it as her pointing out that the plaintiffs want their way and want the Court to “find a way” to give it to them, even if it is not exactly consistent with precedent and law. I think she was actually accusing the plaintiffs of asking the Court to be “activist,” which is exactly what she condemned in the Prop. 22 case.

    Regarding Justice Chin, I think we’ve got the same problem of a Justice recognizing a MORAL problem, but feeling LEGALLY bound to vote a different way than he might want to morally. I see you point though. If he thinks that there is a true legal and constitutional problem with simply upholding Prop. 8, it’s possible he could think it through the way you just described.

    One thing I forgot to ask you about your last post was about the AFL-CIO and its free speech argument. First, I forget who that organization is. Second, you said their free speech rights are not protected federally. I’m confused about that.

  • Dana Chilton

    @John K.:


    The AFL-CIO is the largest organized labor union in the country. A landmark decision by California’s high court ruled in Fashion Valley Mall V. National Labor Relations Board that Organized Labor Unions have the right, under free speech, to rally at places likes malls. that right to rally, demonstrate, and protest by labor is not a federally protected right.

    Justice Corrigan’s comment on ‘finding a way’ was in response to Kenn Starr and the issue of due process of law. When liberty is threatened justices would “Find a way” to protect that liberty. It was not in reference to plaintiffs.

    Justice George will, of course, rule according to law. Justice Brown about 2 years ago (a very conservative African-American justice) said that she agrees with and appreciates the rulings of courts that have saved and protected African Americans from the tyranny of the majority even though those feelings run contrary to how she interprets law as a justice. Justice George is not an ‘activist judge’ ..whatever that means… he’s a believer in the law, ALL the law..including equal protection under the law.

    Most believe we will lose the argument. I’m personally hopeful, but, unsure how the justices will rule. Are constitutions designed to protect liberty or are they designed to allow the majority to do whatever it wants? California has two processes by which the constitution may be changed. Amendment adds to current law, revision changes course. I hope they view it that way, otherwise 50% plus 1 can do anything to anyone at anytime and equal protection under the law means nothing.

  • John K.

    @Dana Chilton: Hey, I agree with your principled discussion of equal protection and the purpose of constitutions 100 percent. I even agree that the two processes for changing the Cali Constitution give the justices all the room they need to strike down Prop. 8. However, if the Justices don’t agree that this is a revision according to the Court’s case law, and they are not willing to extend the definition of revision, we lose. I think we can agree that if there were only one term used for changing the constitution (call it “amendment”), we lose without question (AG Brown’s creative argument notwithstanding). The People are ultimately in charge of their constitution. The question is, what have the People enshrined in the constitution to be less easily changed than the average law? If there were only one way to change the Cali Constitution, and that included the initiative amendment process, then the answer would be NOTHING, and all of our arguments about the purposes of constitutions and equal protection would be moot. If the people say in their Constitution that they can change anything in it by a simple majority, then that’s the way it is (again, from a STATE constitutional standpoint, federal law set aside for the sake of argument). So, it could be said that the People of California, when they adopted the initiative process, willingly destroyed the ENTIRE PURPOSE OF A CONSTITUTION. But, and this is a big “but,” so what? We can’t do anything about that, and neither can the Court. So, if the Court says it’s not a revision, I think they would be terribly wrong because I think it would be foolish to assume that the People intended to destroy the entire purpose of a Constitution by adopting the initiative process, but the Court would be right to uphold Prop. 8, even if it thinks that renders the Constitution meaningless.

    Regarding Justice Corrigan, perhaps I’m just remembering wrong, and I haven’t gone back to listen to arguments again, but I seem to remember her saying that to a plaintiff’s attorney, or if it was Ken Starr, maybe it was like, “Aren’t plaintiff’s just asking us to ‘find a way’ to do what they want?” Now I’ll have to go back a find it. Do you know how far in it was?

    I actually read that AFL-CIO case fairly recently, now that I think about it. We are trying to pass marriage equality here in New Jersey, and we went to a mall to collect postcards to legislators. We have a case in New Jersey that was modeled after the AFL-CIO case that allows us to do those sorts of activities in regional shopping malls, so we were researching that prior to going to the mall. So, I was dumb not to know what you were talking about, haha. This argument being part of the situation certainly doesn’t hurt, but again, it might be water under the bridge at this point.

    I’m not optimistic (as if you couldn’t tell), but I’m holding out a little bit of hope. Not much, but a little. It will be a very interesting opinion to read in either event because the Justices will have to deal with all of these arguments. My hope comes from my feeling that they are not going to want to write, “The People could take away state constitutional free speech rights with a simple majority vote; they could take away women’s rights in certain situations not covered by the federal constitution; etc.” I just have a hard time picturing that, even though that’s what they seemed inclined to do during oral arguments.

  • John K.


  • John K.


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