Prop 8 Forecasting
So many people are disheartened after the oral arguments - newspapers, blogs, etc. Because I wasn't quite sure what to think (even though I have a pretty good understanding - for a non-law person - of legal jargon and legal reasoning) I braved my ex's "we can't talk right now" stance and asked her what she thought. The reason I went to her - she's in her 3rd year of law school and her entire family is in the legal profession so it's in her blood. And, hmm, she's super intelligent and that's why I fell for her in the first place! So in case you were wondering what to think, here are her thoughts:
--Oral arguments can be a tough indicator of how a court is going to vote because the judges have often already made up their minds beforehand. Long before arguments are heard, they've already read all of the briefs for both sides, done independent research, had their clerks write memos and opinions, and discussed it with their clerks and (possibly) each other. On the other hand, oral arguments can serve a useful purpose when there is a particular point a judge wants to get clarified or a judge wants to exploit a weakness in an argument to show the other judges. Also, b/c the California judges need to think about getting re-elected, oral arguments could give them a chance to go on the record as opposing the philosophy/idea behind Prop 8 even if they are going to uphold it as valid. That said, it seemed to me like Chief Justice George and (especially) Justice Kennard, who were both in the 4-justice majority in last May's prop 22 decision, were pretty skeptical of the argument that Prop 8 was a revision requiring prior legislative approval. I thought one of the strongest arguments in favor of upholding Prop 8 was a prior voter-approved amendment that reinstituted the death penalty in California. and was later upheld in court. On this point Kennard said, “It would appear to me that life is, at least in my view, a fundamental right. The court said that particular initiative restoring the death penalty in California was not a revision.” Of course, it is possible they were playing devil’s advocate but if we lose those two votes, then Prop 8 will almost certainly be upheld.
--Starr (the pro-Prop 8 attorney) was really good. The one thing he (eventually) conceded was that there was no retroactivity inherent in the Amendment, which would mean the marriages up to November 7 are valid. Conceding this, however, didn't damage his main argument at all, which was that Prop 8 "does not erode any of the bundle of rights that this state has [already] very generously provided" to same-sex couples via domestic partnership but merely "restores the traditional definition of marriage." As you noticed, it seemed like most of the justices agreed with this point. The problem with this is that it just side steps thinking about the discrimination inherent in calling "the bundle of rights" different things depending on who is involved.
--Something to think about: In principle, whether there is a right to same-sex marriage and whether Prop 8 is an amendment or a revision are two, independent questions. For example, a judge could believe there’s a fundamental right to same-sex marriage but that the state constitution liberally allows amendments by simple majority votes. On the other hand, a judge could believe there’s no fundamental right to same-sex marriage, but think that once the right is recognized, eliminating that fundamental right can only be done through revision. This argument could go as follows: the elimination of a fundamental right for a suspect class is such a monumental act that permitting its elimination through a simple majority vote could set a dangerous precedent for the erosion of other fundamental rights.
--The fact that California's constitution is so retarded (it's over 100 pages long and contains some of the stupidest amendments in the world-- like a prohibition against certain fishing nets b/c they trap dolphins) and that the justices are elected officials does not bode well for the anti-Prop 8 side. Although the Court did not seem inclined to agree with the "philosophy" behind Amendment 8 (obviously, because they already ruled against this philosophy in Prop 22), the technical language contained within it is a different matter. That is why so much of the arguments centered on "amendment" vs. "revision". To put it another way, the question was whether this decision should be made by the California legislature or the people (aka the electorate). The Court seemed to be favoring the electorate, but I think that makes some sense b/c they are all elected officials. That's shitty but that's my realist perspective.
--My prediction is that (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California. The main hope for the anti-Prop 8 side lies in the recognition of several justices today, including Corrigan (who dissented last May), that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision. There's never been an amendment in California or elsewhere that (1) stripped a judicially declared "fundamental right" (a term of art that doesn't just mean things that are important to people) from (2) a judicially-protected suspect class (another term of art that doesn't just mean any political minority). If the California Supreme Court rules in favor of Prop 8, it seems to me it will need to do one of two things: (1) back off from one or more of its rationales from the marriage decision, or (2) candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution. It's hard for me to see how either option would be attractive to the court, but I think they will choose the later because it will allow them to focus on the issue of "amendment" vs. "revision," thereby maintaining their philosophical opposition to Prop 8 while simultaneously pleasing the voters.
--Moving forward: The anti-Prop 8 people really don't want to challenge this in federal court b/c it will likely lose under the current make-up of the Supreme Court, especially as long as the Solomon Amendment and DADT are good law. This probably means that if Prop 8 is upheld, the next battle will be legislative-- i.e. getting ppl elected that will support gay marriage and lobbying the current adminstration. To me, this means at least another 10+ years of work. So our generation has finally found its defining cause.
_______________
*Solomon Amendent - why this is important. See the Constitutional Challenge part of the entry.
*DADT = Don't Ask Don't Tell
--Oral arguments can be a tough indicator of how a court is going to vote because the judges have often already made up their minds beforehand. Long before arguments are heard, they've already read all of the briefs for both sides, done independent research, had their clerks write memos and opinions, and discussed it with their clerks and (possibly) each other. On the other hand, oral arguments can serve a useful purpose when there is a particular point a judge wants to get clarified or a judge wants to exploit a weakness in an argument to show the other judges. Also, b/c the California judges need to think about getting re-elected, oral arguments could give them a chance to go on the record as opposing the philosophy/idea behind Prop 8 even if they are going to uphold it as valid. That said, it seemed to me like Chief Justice George and (especially) Justice Kennard, who were both in the 4-justice majority in last May's prop 22 decision, were pretty skeptical of the argument that Prop 8 was a revision requiring prior legislative approval. I thought one of the strongest arguments in favor of upholding Prop 8 was a prior voter-approved amendment that reinstituted the death penalty in California. and was later upheld in court. On this point Kennard said, “It would appear to me that life is, at least in my view, a fundamental right. The court said that particular initiative restoring the death penalty in California was not a revision.” Of course, it is possible they were playing devil’s advocate but if we lose those two votes, then Prop 8 will almost certainly be upheld.
--Starr (the pro-Prop 8 attorney) was really good. The one thing he (eventually) conceded was that there was no retroactivity inherent in the Amendment, which would mean the marriages up to November 7 are valid. Conceding this, however, didn't damage his main argument at all, which was that Prop 8 "does not erode any of the bundle of rights that this state has [already] very generously provided" to same-sex couples via domestic partnership but merely "restores the traditional definition of marriage." As you noticed, it seemed like most of the justices agreed with this point. The problem with this is that it just side steps thinking about the discrimination inherent in calling "the bundle of rights" different things depending on who is involved.
--Something to think about: In principle, whether there is a right to same-sex marriage and whether Prop 8 is an amendment or a revision are two, independent questions. For example, a judge could believe there’s a fundamental right to same-sex marriage but that the state constitution liberally allows amendments by simple majority votes. On the other hand, a judge could believe there’s no fundamental right to same-sex marriage, but think that once the right is recognized, eliminating that fundamental right can only be done through revision. This argument could go as follows: the elimination of a fundamental right for a suspect class is such a monumental act that permitting its elimination through a simple majority vote could set a dangerous precedent for the erosion of other fundamental rights.
--The fact that California's constitution is so retarded (it's over 100 pages long and contains some of the stupidest amendments in the world-- like a prohibition against certain fishing nets b/c they trap dolphins) and that the justices are elected officials does not bode well for the anti-Prop 8 side. Although the Court did not seem inclined to agree with the "philosophy" behind Amendment 8 (obviously, because they already ruled against this philosophy in Prop 22), the technical language contained within it is a different matter. That is why so much of the arguments centered on "amendment" vs. "revision". To put it another way, the question was whether this decision should be made by the California legislature or the people (aka the electorate). The Court seemed to be favoring the electorate, but I think that makes some sense b/c they are all elected officials. That's shitty but that's my realist perspective.
--My prediction is that (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California. The main hope for the anti-Prop 8 side lies in the recognition of several justices today, including Corrigan (who dissented last May), that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision. There's never been an amendment in California or elsewhere that (1) stripped a judicially declared "fundamental right" (a term of art that doesn't just mean things that are important to people) from (2) a judicially-protected suspect class (another term of art that doesn't just mean any political minority). If the California Supreme Court rules in favor of Prop 8, it seems to me it will need to do one of two things: (1) back off from one or more of its rationales from the marriage decision, or (2) candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution. It's hard for me to see how either option would be attractive to the court, but I think they will choose the later because it will allow them to focus on the issue of "amendment" vs. "revision," thereby maintaining their philosophical opposition to Prop 8 while simultaneously pleasing the voters.
--Moving forward: The anti-Prop 8 people really don't want to challenge this in federal court b/c it will likely lose under the current make-up of the Supreme Court, especially as long as the Solomon Amendment and DADT are good law. This probably means that if Prop 8 is upheld, the next battle will be legislative-- i.e. getting ppl elected that will support gay marriage and lobbying the current adminstration. To me, this means at least another 10+ years of work. So our generation has finally found its defining cause.
_______________
*Solomon Amendent - why this is important. See the Constitutional Challenge part of the entry.
*DADT = Don't Ask Don't Tell