Experts predict Calif. justices will uphold Prop 8 - Washington Blade: Gay and Lesbian News, Entertainment, Politics and Opinion

Experts predict Calif. justices will uphold Prop 8 - Washington Blade: Gay and Lesbian News, Entertainment, Politics and Opinion

18,000 same-sex marriages already performed seen as safe

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Friday, Mar 13, 2009 | Chris Johnson | COMMENTS

Legal experts who once hoped the California Supreme Court would overturn Proposition 8 now expect justices to uphold the measure.

Justices heard oral arguments March 5 over the constitutionality of Prop 8 — an amendment that ended same-sex marriage in California — and whether the 18,000 same-sex marriages performed in the state are still valid.

Gay activists and attorneys from some California municipalities argued the court should invalidate Prop 8 because it is not an “amendment” but rather a “revision” to
the state’s constitution, thereby requiring a two-thirds vote from both chambers of the California Legislature for approval.

California Attorney General Jerry Brown also filed a brief against Prop 8, but argued the court should invalidate the measure because it took away inalienable rights without compelling reason.

Experts who watched the hearing said afterward that justices telegraphed in their line of questioning that they favored upholding the amendment.

Kate Kendell, executive director of the National Center for Lesbian Rights, one of the organizations that filed a lawsuit against Prop 8, said she was “much less optimistic” after witnessing the oral arguments.

“I think the court telegraphed … that they are skeptical of the revision theory that we’ve advanced,” she said. “And as tragic and monumental a disaster it may well be for Prop 8 to be upheld … it appears that the court is on that course.”

Doug NeJaime, a gay fellow at the Williams Institute, a think-tank for sexual orientation law at the University of California in Los Angeles, said “a clear majority” of the court would rule in favor of Prop 8 because justices weren’t buying the argument that the measure was a qualitative revision to the constitution.

“I think justices were on the same page as to what the court would have to do to get to that point, and I think there’s a disagreement among them as to whether they’re willing to do that,” NeJaime said.
Judge: Arguments to kill

Prop 8 lack ‘strong support’

Among the key justices to watch was Chief Justice Ron George, who wrote the majority opinion in the 4-3 decision issued in May that briefly granted marriage rights to gay couples.

George asked attorneys whether the constitution should be considered a “one-way street” that could be used only to expand rights.

“It seems that what your argument really boils down to as a practical but perhaps more political and legal matter is this,” George said. “To put in plain words: It is just too easy to amend the California Constitution.”

But George made comments suggesting he believes the court may be unable to restore marriage rights for gay couples now that voters have amended the California Constitution to prohibit same-sex
marriage.

At one point during the oral arguments, he said, “we have a different state constitution” than before Prop 8 passed, and the process for amending the state constitution “is the system we have to live with until and unless it is changed.”

Also under close watch was Associate Justice Joyce Kennard. She put her name to the majority decision last year that granted marriage rights to gay couples, but was the only justice to vote against taking up the constitutionality of Prop 8 in court in November.

Invoking the 63 friend-of-the-court briefs that were delivered to justices, Kennard suggested that she could be leaning toward keeping Prop 8 as part of the state constitution.

“It appears to me that what some of these briefs have been trying to get across,” she said, “is that those of us who were in the majority in the marriage case this last year would, of course, have to agree that Proposition 8 is invalid. I don’t see it that way.”

Kennard said the issue presented in the marriage case last year pertained “to the court’s authority to interpret a statutory provision in light of the state constitution” and the issue before justices on March 5 was “completely different.”

“We have a pretty well established body of law in California pertaining to what is and what is not a revision,” she said. “Those decisions do not give strong support to your position that the people couldn’t do what they did when they invalidated or disagreed with one aspect of the marriage decision.”

Kennard also was hostile to the reasoning advanced by the attorney general’s office that Prop 8 took away inalienable rights. She asked why the court should invalidate the measure by this logic when such a ruling would also take away the inalienable right of the people to amend the constitution.

“From the beginnings of our state constitutional history, the right of the people to alter or change the provision of the state constitution has been a basic right,” she said, “but you would have us choose between these rights … the inalienable right to marry and the right of people to change the constitution as they see fit.”

Kendell said the change in the line of questioning from justices last year compared to how they approached the March 5 hearing was striking.

“This was a court that wrote in eloquent language how important marriage itself — the word and what it signifies — is to assuring full equality,” she said. “It’s as if the chief justice and Justice Kennard, most notably, have had a body-snatch experience where they seem to have no memory of having written such words.”

Prop 8 unlikely to apply retroactively

Experts were more optimistic on whether the court would uphold the validity of the 18,000 same-sex marriages that occurred before voters passed Prop 8.

During oral arguments, Associate Justice Carol Corrigan, who was among the dissenting justices in last year’s marriage case, questioned why proponents of Prop 8 thought they were voting to approve the invalidation of existing marriages even though such language was not explicit in the amendment.

Kendell said there was a “strong signal from the court, even from members of the court who did not rule in favor of granting same-sex couples the right to marry,” that Prop 8 could not be applied retroactively.

“It seems quite clear, as much as one could predict, that those 18,000 marriages are secure and the law on that point is unequivocal,” she said.

Marc Spindelman, who’s gay and a law professor at Ohio State University, said he “would be very surprised” if in addition to upholding the amendment, justices said Prop 8 “nullifies all of the marriage that were entered into pursuant to [their] decision” last year.

Nonetheless, attorneys on both sides of the case clashed over the constitutionality of the amendment.
Shannon Minter, the legal director of the National Center for Lesbian Rights, represented plaintiff couples and gay activist groups during the hearing. Also pushing for the invalidation of Prop 8 were Ray Marshall, a civil rights attorney; Therese Stewart, an associate attorney with the San Francisco City Attorney’s office; Michael Maroko, a partner at Gloria Allred’s law firm; and Chris Krueger, deputy attorney general for California.

Defending Prop 8 in court was Ken Starr, dean of Pepperdine University’s law school and the independent counsel who investigated President Clinton during the Monica Lewinsky scandal. He argued that Prop 8 should remain part of the constitution because the democratic system provides for “popular sovereignty,” even if the people’s decision is unwise.

Conservative legal experts Mat Staver, chair of the Liberty Counsel, and Brad Dacus, president of the Pacific Justice Institute, didn’t respond to a request to comment on the oral arguments.

The court has 90 days from the date of oral arguments to make a decision; a ruling is expected before June.

‘Win or lose, our community will respond that night’

The expectation that justices would rule to uphold Prop 8 raised questions about what supporters of same-sex marriage should do if the court issues a decision unfavorable to them.

Kendell, a member of the executive committee for the campaign that unsuccessfully tried to defeat Prop 8 at the ballot, said she’s unsure whether another ballot measure in 2010 aimed at repealing Prop 8 would be wise.

“I do fear that mounting such an effort and not being able to close the deal would be a serious setback, so there has to be research done,” she said.

A Field Poll published Tuesday found that if a vote were held at this point, 48 percent of voters would approve a repeal of Prop 8 and 47 percent would reject it, while another five percent were undecided.

Robin Tyler, one of the plaintiffs in the case against Prop 8 and the first person, along with her partner Diane Olson, to have a same-sex wedding in Los Angeles, called on LGBT Americans to have “an immediate response” when the court issues its decision, which she has dubbed the “Day of Decision.”

“We know that win or lose, our community will respond that night,” she said. “The purpose of beginning to organize these Day of Decision actions right now is to make these actions as powerful as possible.”

She and activist Andy Thayer, co-founder of Chicago’s Gay Liberation Network, called on volunteers to organize action on the night after justices issue their decision.

“If it’s a bad decision, our community will not go softly into the night,” Thayer said. “We will react with a justified anger at one of the worst and most cowardly court decisions of our era.”