Oral Arguments on Prop 8 in California

The California Supreme Court is holding oral arguments on Prop 8 and gay marriage today.

You can watch the hearings live on the web here.

In a nutshell:
The court will hear three hours of arguments and have 90 days to issue an opinion. If it overturns the ban, gay couples would again be permitted to marry in California.

< Major Facebook Changes Coming | Think Good Thoughts for Robin Williams >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    I had problems (none / 0) (#1)
    by dk on Thu Mar 05, 2009 at 11:53:08 AM EST
    getting onto Cal Channel.  But CNN seems to be working.

    Thanks, Jeralyn. (none / 0) (#2)
    by oculus on Thu Mar 05, 2009 at 11:59:04 AM EST

    Is this some sort of speed record? (none / 0) (#3)
    by sarcastic unnamed one on Thu Mar 05, 2009 at 11:59:13 AM EST
    4 months from start to Supremes?

    Oh, CALIFORNIA Supreme Court. (none / 0) (#5)
    by sarcastic unnamed one on Thu Mar 05, 2009 at 12:07:21 PM EST

    Any predictions... (none / 0) (#4)
    by Thanin on Thu Mar 05, 2009 at 12:01:18 PM EST
    on how the US supreme court will rule on this, should it get that far?

    It's my understanding that (none / 0) (#6)
    by Think Before You Type on Thu Mar 05, 2009 at 12:11:47 PM EST
    since this case revolves solely around the interpretation of the California Constitution (no one has suggested that the US Constitution contemplates a right to same-sex marriage), the California Supreme Court would be the final jurisdiction (i.e. their decision could not be appealed to Federal courts).



    Ahh... (none / 0) (#7)
    by Thanin on Thu Mar 05, 2009 at 12:16:07 PM EST
    thank you for that clarification.  Obviously Im not a lawyer.

    You're very welcome. (none / 0) (#8)
    by Think Before You Type on Thu Mar 05, 2009 at 12:17:56 PM EST
    I'm not a lawyer either, and I would welcome corrections from anyone with more legal knowledge than I have.

    You are exactly correct (5.00 / 1) (#19)
    by ericinatl on Thu Mar 05, 2009 at 01:51:18 PM EST
    Though it would be interesting to see a federal claim made on what exactly "constitutional democracy" means.  One would think that one could not change a constitution by a simple majority vote, as that defeats the whole purpose of a constitution protecting inalienable rights.

    THe CJ actually brought that fact up (none / 0) (#35)
    by coigue on Thu Mar 05, 2009 at 04:19:04 PM EST
    with a fair amount of disdain for the process, saying there have been countless revisions

    What? (none / 0) (#26)
    by MrConservative on Thu Mar 05, 2009 at 02:24:38 PM EST
    I'm am pretty certain that the defense would have to argue for the 14th amendment, being that the California constitution has specifically prohibited gay marriage under any circumstances.  There's no way to argue it under the California constitution.  To strike it down, the supreme court would have to use the US constitutions 14th amendment (or some other reasoning).  In which case it COULD be appealed to the supreme court, and unless one of the five conservative justices dropped dead sometime beforehand, it would be defeated.

    wrong (none / 0) (#33)
    by TimNCGuy on Thu Mar 05, 2009 at 03:47:42 PM EST
    the argument is that the very RECENT change to the constitution to ban gay marriage was incorrectly put to a vote.  The argument is that this ammendment was actually NOT an ammendment, but a CHANGE to the constitution.  CA law says that an ammendment to the constitution can be put to a popular vote the way this was.  But, that a CHANGE to the constitution requires a two-thirds vote of the CA legislature BEFORE being put to a vote of the people.

    If the argument holds, then prop 8 goes away because it was not properly put up for a vote in the first place.


    sorry, wrong terminology (none / 0) (#34)
    by TimNCGuy on Thu Mar 05, 2009 at 03:48:50 PM EST
    I should have said REVISION, not CHANGE

    Was prop 187 (none / 0) (#36)
    by coigue on Thu Mar 05, 2009 at 04:20:15 PM EST
    also an amendment?

    Could Prop 8 immediately rise again? (none / 0) (#37)
    by Jacob Freeze on Thu Mar 05, 2009 at 04:21:41 PM EST
    I agree that the issue is "change" instead of "amendment," but does this mean that if the CA Supremes rule against Prop 8, it could immediately return to the ballot in a slightly different form, rephrased as an amendment? Or is there a deeper problem?

    Obviously there's something in play here beyond the usual meaning of "change," since every amendment changes a constitution in one way or another.


    the word is (none / 0) (#39)
    by coigue on Thu Mar 05, 2009 at 04:26:34 PM EST

    Well, that would depend on (none / 0) (#40)
    by dk on Thu Mar 05, 2009 at 04:28:58 PM EST
    the reasoning the court would use to strike down Prop 8.  

    The anti-prop 8 side argued, for the most part, that the court should not allow a restriction on a fundamendal right (i.e. marriage) with respect to a minority group to occur through the simple amendment process like prop 8 went through (i.e. simply getting a majority vote on a proposition).  Instead, at minimum, it should require the more onerous revision process (which requires approval by the legislature and a statewide vote).

    If the court went with that reasoning, then no, restoring prop 8 would not be as easy as bringing it up again on the statewide ballot.  They would need to go through the legislature first.


    Attorney General's office is aligned (none / 0) (#9)
    by oculus on Thu Mar 05, 2009 at 12:30:41 PM EST
    with the challengers to Prop. 8.  But not arguing Prop. 8 constitutes a "revision" to the California Constitution. Tough spot to be in.

    "contemplates a right" (none / 0) (#10)
    by rea on Thu Mar 05, 2009 at 12:51:43 PM EST
    no one has suggested that the US Constitution contemplates a right to same-sex marriage

    Well, but the point about the federal constitution is that it is not an enumeration of limited rights; it's a statement of limited government power:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    To ask whether the federal constitution "contemplates" a particualr right is to ask the wrong question.

    I see it in the Equal Protection clause of the (none / 0) (#12)
    by Joelarama on Thu Mar 05, 2009 at 01:16:23 PM EST
    14th Amendment.

    Penumbra. (none / 0) (#13)
    by oculus on Thu Mar 05, 2009 at 01:24:09 PM EST
    Neither side in California (none / 0) (#14)
    by Think Before You Type on Thu Mar 05, 2009 at 01:35:48 PM EST
    has made this type of argument (that there is a Federal right).  It's precisely because the Federal ground is not fertile that this issue is being decided piecemeal by the states.

    I'm not saying that your arguments couldn't be made - all sorts of arguments can be made.  But marriage rules are not discussed in the Federal constitution - these are state issues.  Since there is no technical discrimination against any individual (after all, homosexuals have precisely the same freedom to marry as heterosexuals, and always have) it is not likely to be viewed by the US Supreme Court as an equal protection issue.


    No comment... (5.00 / 1) (#28)
    by MrConservative on Thu Mar 05, 2009 at 02:26:50 PM EST

    On appeal, the United States Supreme Court ruled that the criminalization of interracial sex was not a violation of the equal protection clause because whites and non-whites were punished in equal measure for the offense of engaging in interracial sex.


    You are mistaken (5.00 / 3) (#31)
    by Steve M on Thu Mar 05, 2009 at 02:52:18 PM EST
    The State of Virginia certainly ARGUED that there was no equal protection violation because both whites and blacks were prohibited from intermarrying.  But the United States Supreme Court rejected that argument.

    Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race....

    There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.  We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

    So I guess (none / 0) (#32)
    by CST on Thu Mar 05, 2009 at 03:00:17 PM EST
    They tried to argue that and lost.  Should be some fodder against the people who say this isn't gender discrimination.

    No one has made the argument yet. (none / 0) (#15)
    by oculus on Thu Mar 05, 2009 at 01:39:50 PM EST
    But may tru tp after the California Supreme Court files its opinion in today's case.  

    Not penumbra. That's due process. (none / 0) (#17)
    by Joelarama on Thu Mar 05, 2009 at 01:47:06 PM EST
    I went to law school with Shannon (none / 0) (#11)
    by Joelarama on Thu Mar 05, 2009 at 01:14:09 PM EST
    Minter, who is arguing to overturn Prop 8.  He is a brilliant attorney, and we are in good hands.

    Kenneth Starr is sooo suave, cool, and (none / 0) (#16)
    by oculus on Thu Mar 05, 2009 at 01:41:43 PM EST

    From listening to the justices (none / 0) (#18)
    by dk on Thu Mar 05, 2009 at 01:50:06 PM EST
    during oral argument, it looks like they will likely uphold Prop 8 but allow the same-sex marriages performed before Prop 8's passage to survive.

    That's an unsustainable decision, (none / 0) (#20)
    by andgarden on Thu Mar 05, 2009 at 01:58:36 PM EST
    it seems to me.

    Well, (none / 0) (#22)
    by dk on Thu Mar 05, 2009 at 02:02:36 PM EST
    the majority of the justices seem to be indicating through their questions/statements that they would be following the court's jurisprudence in reaching that outcome.

    Allowing Prop 8 in the first place (none / 0) (#23)
    by andgarden on Thu Mar 05, 2009 at 02:04:44 PM EST
    opened Pandora's box. California has a screwy system of government.

    Including the fact the Justices and CJ (none / 0) (#24)
    by oculus on Thu Mar 05, 2009 at 02:12:28 PM EST
    of the California Supreme Court are subject to recall and must periodically stand for re-election. Sounds like the Justices are very aware of these two facts.

    Unsustainable (none / 0) (#25)
    by Steve M on Thu Mar 05, 2009 at 02:12:59 PM EST
    legally or politically?  Because there is only one higher authority, at least in the secular sense.

    a simple reading of California law would say that this is an amendment, not a revision.  According to California court precedents, a revision has to be a change to the Constitution that fundamentally changes the structure of government; it's hard to see that this proposition is fundamental on that level.

    If they decide that the change should not be retroactive, it's because California law stipulates that in order to be retroactive, laws have to explicitly state that they are retroactive.  This law is not completely explicit on this point - it's an inference from the wording.

    I don't see that these two decisions would be inconsistent with one another.


    So.. (none / 0) (#29)
    by MrConservative on Thu Mar 05, 2009 at 02:28:48 PM EST
    You are saying there's no way for the people of California to amend the constitution to ban gay marriage besides submitting an amendment to change the structure of government?

    Frankly, I don't think that would ever stand.  Prop 8 is clearly an amendment.


    more slowly; I think you may have missed my point.



    Why unsustainable? (none / 0) (#41)
    by diogenes on Thu Mar 05, 2009 at 08:24:46 PM EST
    The legal marriage was undertaken when it was legally binding between homosexual couples.  The amendment effectively says that the state can no longer recognize new marriages.  
    I'm still waiting for the legal precedents to be set around divorce, alimony, property division, etc.  Divorces aren't easy to get in most states.  Is there even a court in California that has granted gay divorces?

    Mell of a hess if that is the (none / 0) (#21)
    by oculus on Thu Mar 05, 2009 at 02:01:38 PM EST
    majority opinion result.

    Sounds to me like CJ George and Justice Kennard will vote to uphold Proposition 8, and Justice Werdeger will vote for invalidity.  


    Upon listening to the CJ (none / 0) (#38)
    by coigue on Thu Mar 05, 2009 at 04:25:49 PM EST
    discuss how the amendment process has created MANY changes to the constitution, and that some of them have infringed on minority rights, I guess there may be a commentary on the inappropriateness of the amendment process itself in an (unfortunate) decision to uphold prop 8.

    CA's screwy system (none / 0) (#42)
    by BrassTacks on Thu Mar 05, 2009 at 11:11:10 PM EST
    It allows the people to vote, then overturns their vote.  Then allows them to vote again, and seeks to overturn it again.  Why bother with the voting step?  Seems kinda silly when their courts will ultimately decide.  

    Courts shouldn't decide (none / 0) (#43)
    by diogenes on Sat Mar 07, 2009 at 08:24:14 PM EST
    Much simpler if they pass an amendment defining marriage as between two consenting adults, while banning polygamy between consenting adults, since this seems to be what people want.  If Roe v Wade never happened forty states would have legal abortion by now and the ten which didn't would be the ones with no abortion clinics anyway (e.g. South Dakota).  
    Note though that people who don't want government legislating morality are very ready to legislate about polygamy although a billion people believe otherwise.

    Simple solution (none / 0) (#44)
    by catmandu on Wed Apr 01, 2009 at 12:30:54 PM EST
    Amend the state constitution defining marriage as a union of TWO UNMARRIED ADULTS.  No worries about poligamy or underage marriages.