Justice may be blind, but let’s take a look at the seven jurists of the California Supreme Court who will decide within the next 90 days the fate of Proposition 8, the asshat ballot initiative that outlawed gay marriage in the Golden State. In the makeup of the court, we can get a good sense of how they’ll rule.
| The Justice | Voted In re: Marriage Cases for gay marriage? | Voted to Hear Prop. 8 Suit? | Fun Fact | Likely Vote on Prop. 8 |
 Chief Justice Ronald M. George |
Yes | Yes | As Chief Justice, wrote the majority opinion in last May’s marriage case– a decision that rejected the traditional definition of marriage as “a compelling state interest.” | Will seek a remedy that supports minority rights. |
 Associate Justice Marvin R. Baxter |
No | Yes | The L.A. Times describes his style as “cautious, conservative and competent.” | With limited case law supporting a repeal, he’ll vote to uphold Prop. 8. |
 Associate Justice Ming Chin |
No | Yes | Has a reputation as an attentive listener during oral arguments, usually asking crisp clarifying questions of counsel | A member of the dissenting minority, Chin will uphold Prop. 8. |
 Associate Justice Carol Corrigan |
No | Yes | There’s widespread speculation that Corrigan, who voted against gay marriage, is a lesbian. | Corrigan calls herself a centrist. |
 Associate Justice Joyce L. Kennard |
Yes | No | Kennard has a reputation for aggressive questioning during oral argument and long-winded questions. | Kennard is a wild card. She voted for gay marriage, but was the sole justice who didn’t want to have a hearing. |
 Associate Justice Carlos R. Moreno |
Yes | Yes | Wrote the opinion in Elisa B. v. Superior Court that confirmed that two women could be recognized as parents by the state. | Moreno wanted to hold off Prop. 8 taking effect at all until the hearing, so we’re pretty certain he’ll vote to overturn the ban. |
 Associate Justice Kathryn Werdegar |
Yes | Yes | Werdegar was wary of the court intervening in gay marriage during the initial hearing, but sided with the majority. | Since the earliest voters could boot her off the bench is 2014, expect Werdegar to vote her conscience. |
| The Justice | Voted In re Marriage Cases for gay marriage? |
Voted to Hear Prop. 8 Suit? | Fun Fact | Likely Vote on Prop. 8 |
atdleft
Definitely George & Kennard are the ones to watch. If they still stand where they stood at this time last year, we win.
What I Fear Most: The politics! Will fear of recall/losing reelection scare them away from doing the right thing? I hope not.
What Gives Me Hope: The law! Will the clear cut case that marriage is a fundamental right that can’t be stripped away by a simple majority vote be enough to push them to do the right thing? I DEFINITELY hope so!
strumpetwindsock
@atdleft: Your state supreme court justices are elected? Man, that is a mistake. It opens the potential of knuckling under to the will of the majority all over again (and even if they don’t there is always the suspicion that decisions might be influenced).
As you say, let’s hope they do the right thing.
atdleft
@strumpetwindsock: Yes, every 12 years. Ron George & Ming Chin are up for reelection next year. On one hand, they may be concerned about facing radical right opposition. But OTOH, they may also be worrying about losing LGBT support. And to make things even wilder, a recall provision allows for the other justices to be challened next year if enough signatures are collected.
Yes, California is one f*cked up state. But hopefully, the court will do the right thing and make things a little less f*cked up for us.
spb
I think we shouldn’t get our hopes up. Kennard voted with us in the Marriage Cases, but she voted against hearing this challenge, arguing in a dissent that the only issue was what to do with the marriages already in place. It seems very unlikely she is going to vote with us again.
RS
@strumpetwindsock: To clarify, California’s Supreme Court justices are appointed by the Governor, but then come up for a Yes/No confirmation vote every 12 years. If the voters vote “no” against confirmation, the justice is removed from office, leaving a vacancy for the Governor to fill.
DonG90806
After watching the oral arguments, I suspect that Prop 8 will be overturned. However, I think two of the female Justices are going to change their opinions. Justice Corrigan dissented in the original marriage case; however, her dissent started out with the statement that she thought gays and lesbians had the right to marry, but that this case was not properly before the court. In today’s hearing she sounded much more supportive of gay marriage. On the other hand, Justice Kennard voted yes in the original marriage case, but was really supportive of Prop 8 in today’s oral argument. With the issue of what happens to the 18,000 existing gay marriages, I think the court will decide 5-2 or 6-1 to uphold the existing marriages. Justice Baxter is ultra-conservative and will vote no and Justice Ming is very conservative and based on today’s arguments may or may not uphold the existing marriages (he will vote, however, to uphold Prop 8)
atdleft
@DonG90806: Yeah, Don. I’m wondering the same thing. George & Werdegar asked some tough questions to our lawyers at first, but then they hit Ken Starr hard. While we can’t really get in the judges heads, it just didn’t seem like those two had really changed their minds. Meanwhile, it was crystal clear from the start that Moreno favored us while Baxter favored the other side. We have at least one vote solidly in our favor while they have one vote they can definitely count on.
The others, OTOH, seemed different from last year. Kennard seemed to take a full 180 from last year in wondering why we queers aren’t happy with our nice lil’ “bundle of rights”. Corrigan also seemed to take a full 180, but in her case by asking Ken Starr the toughest questions on retroactivity and minority rights. Even Chin made me wonder if he was changing his mind, though I’m not as hopeful of him switching sides as I am about Corrigan. And maybe Kennard was just being her usual self in interrupting our lawyers and contradicting everything they said, but I’m not feeling as confident about her as I was before today.
I don’t like to prognosticate the court, but if I had to right now I’d say it now looks like: (ranking in likelihood judge will vote this way)
Pro-H8:
Baxter
Chin
Pro-Marriage:
Moreno
Werdegar
George
Unclear:
Kennard
Corrigan
Most likely if we hold Kennard and/or win over Corrigan, we have ourselves a favorable ruling.
Kevin (not that one)
@atdleft: Okay, then let’s play this game like the opposition would.
When Baxter and Chin cast yet another vote for inequality, we will make it a point to have them removed from the court come time to reconfirm them. It happened to Rose Bird, it can happen again.
If they allow our civil rights to be up for a popular vote, then let a popular vote sweep them off the bench.
emb
It’s hard to read this morning’s hearing. Justices frequently do not telegraph their actual opinions, sometimes questioning counsel heavily against the justice’s own inclinations, sort of as a reality-check on what they’ve already decided. We won’t know the outcome of this until they issue their opinion, which I hope is sooner than June.
emb
Oh and another thing: Kevin (Not That One) is absolutely right: regardless of how this comes out, justices who vote against our civil liberties really need to be called out publicly and ejected from office when their time rolls around.
DonG90806
For anyone interested in watching the oral arguments, the web site is
http://www.calchannel.com/channel/viewvideo/138
Because of the heavy traffic, you may have trouble linking to the site, but keep trying. It’s well worth the effort.
Don
DonG90806
@DonG90806: Just an afterthought. Justice Corrigan dissented in the original marriage cases, but today seemed very supportive. I wonder what the effect of her being a closeted lesbian will have on her decision.
Kevin (not that one)
@emb: As you can see here:
http://flapsblog.com/2008/05/15/california-supreme-court-overturns-gay-marriage-ban-the-response/
…the evangelical right are already on top of this “recall” effort of Supreme Court justices. I think we need to be ready for this fight. Ming, Moreno, and George come up for re-confirmation in 2010. Moreno is a liberal, so I think we should gear up to support him. George is a moderate and did cast the deciding vote in favor of SSM last May. Ming, however, might have to go.
I think we need to wait to see the outcome of this decision before we decide who to support or not support for the re-confirmation. But make no doubt about it, the right wing anti-gay haters are already gearing up to sweep those they perceive as “liberals” out of the court.
atdleft
@Kevin (not that one): Yeah, I like this! No More Mr. Nice Gay! 😉
Chin doesn’t seem to remember how much support he got from progressives when he ruled with the majority in overturning the parental notification for abortion initiative. I guess he doesn’t mind losing all that support if he again rules to deny us equal marriage rights. I think George better understands the predicament he’s in, so I hope he keeps the promises I’ve heard he’s made to the LGBT community. And if Kennard and/or Corrigan makes a majority vote for marriage equality, she will be justly rewarded by us.
observer
As mentioned before on this thread, politics and threats to unseat any Justices voting against Prop 8 are bound to be considerations in the Courts decision. In 1986 strong right wing pro-death penalty groups succeeded in unseating Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin, so there is a precedent. The right wing was also behind the recall of Governor Gray Davis that ushered in Guv Arnolt and the current mess in Sacramento.
Personally I’m not hopeful that this Court will stick its neck out again and overturn Prop 8. I think it’s more likely that they’ll valid existing same-sex marriages and back away from the main question on a technicality.
http://en.wikipedia.org/wiki/Rose_Bird
atdleft
@observer: I dunno. There was another right-wing attempt to change the balance of power in the court in 1998, just after The Supremes voted to invalidate the original parental notification initiative. And despite all the money they spent to defeat George & Chin, they both survived.
Maybe Chin’s shied away from “controversial rulings” since then, but George certainly has not. I’m hopeful that the majority will recognize they need not worry about right-wing vengeance… Unless they vote to uphold H8 and see whatever progressive support they had evaporate.
Sebbe
subscribed
MadProfessah
@DonG90806:
I find it horrifying that if Carol Corrigan (who is 60 years old and unmarried and shares a duplex with another women in Alameda County) is a lesbian would NOT sign on to the sexual orientation is a suspect class part of the In Re Marriage Cases even if she didn’t agree with the majority’s decision on the statutory question.
I do think she sounded ready to adopt a rule that would strike down Prop 8 as an improper revision, and would be joined by Werdegar and Moreno
DonG90806
For those of you who were lucky enough to see the oral arguments today, I have some additional information for you. The bald headed guy who argued first for the gays was a female-to-male transsexual (Shannon Minter). He is now married and is very out about being a tranny. The female attorney arguing for the City of San Francisco is an out lesbian. So, with the addition of Justice Corrigan as a lesbian, I can say that we were really well-represented today.
bigjake75
there is a lot of chatter that the court will not be friendly, and that Starr outshone our side…see this link
http://www.towleroad.com/2009/03/proposition-8-argued-before-california-supreme-court.html
man, when are we going to move past all the division and just live and let live?
kevin (not that one)
Umm…”we”?
We’ve wanted nothing EVER but to live and let live.
atdleft
@bigjake75: Let me second @kevin (not that one) in saying that’s all we want… And that’s why we demand equal rights! We’ll never be allowed to “live and let live” if we remain second-class citizens with fewer rights than the straight majority. We’d always be picked on, always be bullied, always be oppressed. As Harvey Milk would say over 30 years ago, we’re fighting for our very lives now!
@MadProfessah: Hmmm, so maybe all these media reports declaring “Prop H8 will stand!” are being a bit premature? Now I don’t want to predict either victory or defeat now, as I received too many mixed signals yesterday.
All I can say is that Moreno & Werdegar seemed most friendly to us, while Baxter & Chin seemed least friendly. I got good vibes from George, and you got good vibes from Corrigan. And Kennard? I have no f*cking clue what she’s thinking!
As long as we keep George and either keep Kennard and/or win over Corrigan, we have ourselves a win. Otherwise, we start collecting signatures for 2010!
Vicky
@atdleft: Unfortunately, we’ve lost Kennard (this is a rare time that I will make a strong assertion about a future decision from her, since she actually all but said so from the bench in at least one of her numerous lengthly soliloquies) and we probably lost George. I think Corrigan flipped, but it won’t be enough.
The thing people seem to miss is that this case is NOT about marriage. This is an entirely different situation. This case is about whether a particular initiative, which purports to be an amendment, is properly an amendment or if it is a revision, which requires legislative action prior to going on the ballot. We are arguing a novel position, that affecting fundamental rights for a suspect class requires a revision. It sounds obvious, but it would mean that our Republican court would actually have to uphold minority rights over the express will of the people. Plus the court has had the opportunity to move in that direction numerous times and never showed any interest.
As George pointed out over and over, our position would be very broad. The CA constitution and prior court decisions call many things inalienable rights (going our way might require the court to invalidate the death penalty, and so George is very, very wary about going there). He sounded sympathetic, but his early insistence that this was only about a word was disheartening coming from the man who a year ago wrote that the word was important.
Ken Starr’s repeated comments about how prior justices have upheld laws that they found repugnant was probably aimed mostly at George. Sometimes justices have to hold their noses and reach results that they don’t like.
Corrigan kept asking questions about the test to be used, which makes me think that she is trying to craft a workable solution.
The swing vote here is George, and unless Corrigan has a good solution worked out, we are going to lose this one.
BTW, for those not following the details of the series of cases, Jerry Brown the AG hurt us by saying it wasn’t a revision, and arguing that it was an invalid amendment. That position will get at most one supporter, and undercuts our argument that might actually win. This is why the AG’s representative was asked which side they were on (incidentally, the AG’s office’s answer is inconsistent with what they argued last year, and so will probably have little weight with the court).
MadProfessah
@Vicky: I completely agree with Vicky, with the addition that the AG also hurt us by having an absolutely incompetent representative in Thomas Kruger arguing his inherently difficult argument before the Court.
I think it’s not a complete lost case, and I think the court, even if it does uphold the Proposition will try to send a strong message that it will not look favorably at amendments which attempt to reduce the fundamental rights of suspect classes in the future.
I do think there should be some kind of modifcation of the initiative process…
SF
@Vicky: I also felt that a lot of people seem to think that this case is arguing wether gays have the right to marry or not which was already decided a year ago. Kennard made it clear from the very beginning that this time it is Californians’ right to ammend the Constitution. Overall, I was satisfied with the hearing because I felt that judges were trying to find a way to overturn the proposition but were struggling with it. The only thing I found inconsistent: Kennard asked if it’s just about the label “marriage”, while it was clearly decided in the last year’s opinion (which she also signed up under) that mariage is not a label but a right. So I was surprised that during the hearing she suggested that marriage is a “label”. Does anyone have any thoughts on that?