Proposition 8 Oral Arguments

I managed to watch the oral arguments on overturning Proposition 8 this morning, and I found them fairly interesting, if ultimately disappointing. It left me with the fairly strong impression that the existing marriages will not be invalidated, but that the ban on same-sex marriage will stand as it is. Robert at Calitics has a discussion/prognostication post, on which I have commented, but I wanted to expand a little here.

Personally, I thought that it was unclear which way both Chief Justice George and Justice Corrigan were leaning, although the chief justice was clearly taken aback by Kenneth Starr’s argument that even the right to free speech could be taken away by initiative amendment. On the arguments in favor of overturning the amendment, I thought Therese Stewart was the most convincing. On the other hand, I found the argument advanced on behalf of the attorney general to be entirely unconvincing, a view that appeared to be shared by the court. Additionally, it appeared that Christopher Krueger was unprepared.

As an aside, Mr. Starr, the appropriate title for any attorney general or, in this case, senior assistant deputy attorney general is not ‘general’. ‘General’ is an adjective modifying the noun attorney, which is why the plural is attorneys general not attorney generals. I would think a man of your experience would know that.

On the upside, I do think the court’s decision will ultimately establish some standard indicating that changes to fundamental rights are a revision, rather than an amendment, to the Constitution, even if they find that the changes made by Proposition 8, which were repeatedly described as limited to the term ‘marriage’. This will have to be viewed as a win for minority rights in general, which will be a poor, but valuable, consolation prize.

Interesting items:

  1. Justice Chin was very interested in the possibility of directing the state to ‘get out of the marriage business’ as a way of reconciling equal protection with the prohibition on same-sex marriage. I personally think this is a viable and reasonable solution. I’ve always favored the French system where the civil marriage and the religious marriage are performed separately (traditionally the wedding party walks from the town hall to the church for the religious service). I don’t think the other justices were really on board with this idea, nor did the various attorneys seem prepared to answer the question of whether the court could so order in this case.
  2. Most of the justices asked whether the arguments in favor of overturning the amendment amounted to ‘it is too easy to amend the Constitution.’ I honestly think the correct answer is ‘no’, which I believe Ken Starr’s argument in favor of radical majoritarian rule tyranny make starkly clear. However, it is too easy to amend the Constitution and initiative reform needs to be on the agenda for any constitutional convention.
  3. The Chief Justice seemed especially concerned with the question of whether an amendment adding a right to the Constitution should also properly be a revision, if Proposition 8 is a revision. The attorneys in favor of overturning Proposition 8 gave conflicting answers to this question, and I didn’t think any of them gave a particularly good one. My personal response, having had time to think about it, facing no pressure, and having read none of the briefs or precedent, would be that the language of Article 1 Section 1 clearly allows for unenumerated rights, and that therefore enumerating a right can properly be an amendment in that it adds to the Constitution within its general scheme and framework. It did not come into existence, it merely became enumerated. Proposition 8, on the other hand, does more than simply unenumerate a right (for example, striking the word ‘privacy’ from section 1 after which there may still exist the right), it affirms that for same-sex couples there is no right to marry.
  4. Justice Kennard’s accent and manner of speaking is kind of enthralling.

There will be a decision in 90 days. In the mean time, I think I’ll focus on the fight against the spending cap.

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2 CommentsLeave a comment

  1. I enjoyed reading your take on the Prop 8 oral arguments. I am not as optimistic as others that Justice Corrigan might change sides, so to speak, and vote to overturn Prop 8, but it was encouraging that she of all the justices questioned along the lines of a principle. The principle, that stripping a fundamental right from a suspect class constitutes a revision to constitutional equal protection guarantees, seems reasonable enough to me, though Art Leonard in response to a comment on his website pointed out that even that might be too up for interpretation to carry 4 votes.

    And by the way, “General” is ubiquitously used to style solicitors and attorneys general. I don’t know why, but I’ve listened to and read enough oral arguments transcripts to know that that’s what is said. So for all the many other reasons Dean Starr was mistaken during oral arguments, including his referring to J. Chin as Justice Ming (a mistake he made twice when sitting on a panel on the California Court moderated by J. Werdegar), he was correct in referring to “General Krueger”.

    • “General” may be used as a term of address, but that doesn’t mean it is used properly. I’ll point to this article by William Safire. That said, I did pretty much mention the usage as a cheap shot at Dean Starr, rather than any radical devotion to grammar.


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