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March 06, 2009

California Supreme Court *Appears* To Be Leaning Towards Upholding Prop 8

That's the analysis from the San Fran Chronicle, but I don't think that's right.

I think the justices wish to appear as though they are genuinely willing to address the issue with an open mind -- and not knee-jerkedly reverse the decision of the voters simply because the voters disagree with them -- but will ultimately strike down the proposition.

In case you don't know, the legal challenge is this: An "amendment" to the constitution can be added by simple-majority ballot initiative, but a "revision" cannot be. And the anti-prop-8 lobby claims that by restricting the rights of a minority already enshrined in the constitution (enshrined, that is, by a narrow 4-3 vote of the state supreme court less than a year ago), this proposition amounts to a "revision."

So technically they're not considering the same legal question as they did last year. But who are we kidding. These guys are all outcome-oriented.

Susan Estrich notes it would only take one flipped vote to uphold the amendment -- but then, it only takes one of the anti-gay-marriage justices to flip to condemn it, too. Which one could do -- again, technically speaking, this is a different issue.

The California Supreme Court, which last year declared the right of gays and lesbians to marry, appeared ready Thursday to uphold the voters' decision to overrule the court and restore the state's ban on same-sex marriage.

"There have been initiatives that have taken away rights from minorities by majority vote" and have been upheld by the courts, said Chief Justice Ronald George. "Isn't that the system we have to live with?"


Another member of last year's majority, Justice Joyce Kennard, said the challenge to Prop. 8 brought by advocates of same-sex marriage involved "a completely different issue" from the court's ruling that the marriage laws violated gays' and lesbians' rights to be treated equally and wed the partner of their choice.

"Here we are dealing with the power of the people, the inalienable right, to amend the Constitution," Kennard said. Speaking to a lawyer for same-sex couples, she said those who want to overturn the voters' decision "have the right to go to the people and present an initiative."

Pressed to define the difference [between "amendment" and "revision"], Shannon Minter of the National Center for Lesbian Rights, lawyer for one group of same-sex couples, said that when a majority repeals a fundamental right from a group "historically subject to discrimination," that's a revision.

But George said voters had done just that in ballot measures that restricted school busing for integration and banned affirmative action based on race or sex in government programs.

Kennard said the right to life is at least as fundamental as the right to marry. She noted that the court, after declaring the death penalty unconstitutional in 1972, upheld an initiative that year overturning the ruling.

Kenneth Starr is lead attorney for the group which promulgated prop 8.

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posted by Ace at 11:34 AM

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