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Analysis of Prop 8 Decision

May 26th, 2009 No comments

Here’s a good background to today’s decision on Prop 8 (Strauss v. Horton)  if you need to get up to speed before reading my layperson’s analysis of the court’s holding today.

First, the results: The court, by a 6-1 vote, has ruled that this ballot initiative was a valid exercise of the process to amend the state’s constitution. On the other hand, a unanimous court briskly disposed of the contention that Prop 8 should be read retroactively to strip those 18,000 or so already-married couples of their status.

The plaintiffs had argued that Prop 8 represented an unconstitutional revision of the constitution; unlike amendments, revisions require the legislature to first approve the measure — by a 2/3 vote — before the voters get to decide the question. So, what is the difference between an amendment and a revision?And what is the proper allocation (“separation,” in the argot) of powers between the branches of government? These were the principal points of contention on the substance of Prop 8.

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change; (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislature (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction. Each point will be discussed under a separate heading.

Ease of Amending the California Constitution

The court began by situating the reader within the unusually amendable California Constitution. Comparing it to other Constitutions — especially with regard to marriage equality and the difficulty of withdrawing that right — the court characterized the petitioners’ claim thus: “[I]t is just too easy to amend the California Constitution through the initiative process.” (Pdf version of the case at page 12.) But it’s not our job to curtail the process, but “to uphold it,” said the court. In a sense, of course, this is an unfair characterization of the plea, which held that the process was not, in fact, as easy as the Prop 8 proponents were stating. Yet the court’s statement does capture some of the frustration many feel at the entire ballot initiative process in California.

Deemphasizing the Constitutional Importance of the “Marriage” Designation

The next point is worth careful parsing (get ready for the torrent of law review articles surely to follow). Was it the right to marry that was fundamental and worthy of protection in the court’s decision last year? We did call it that then, the court conceded, but that’s just a shorthand; now, it’s not the constitutional right to marry but “the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice.)” (p. 35) I guess that opposite-sex couples can still use the shorthand, though. (Some advice:  Same-sex couples, carry the preceding description of your constitutional rights with you at all times, along with your Organ Donor Card and, if applicable, your medical alert bracelet.)

By now deemphasizing the word “marriage”, the court is warring with its own decision in last year’s In Re Marriage Cases, in which the majority relentlessly hammered home the point that the word “marriage” is vital. The court couldn’t ignore that it was doing so, but note this important change from last year’s decision: “We by no means diminish or minimize the significance that the official designation of ‘marriage’ holds for both the proponents and opponents of Proposition 8.” (p. 7; emphasis added) Last year, the court was concerned about those deprived of marriage; now, they are equally solicitous of the views of those opposing equality.

It must be noted, though, that the court in several places reiterated that distinctions based on sexual orientation will continue to be “suspect,” meaning that the highest level of justification will be needed to support them. This principle was one of the signal achievements of In Re Marriage Cases, as it made California the first state to grant the highest level of scrutiny to gays and lesbians. Thus, any statute that discriminates on this basis will likely fall; the constitutional issue is different, though, because Prop 8 carves out an exception to this principle for one issue. (More on this later.)

Amendment or Revision?

This is the heavy sledding, a long discourse on the history of California’s Constitution and on the elusive distinction between “amendments” and “revisions.” I’ll keep this as brief as accuracy will allow. Revisions are substantial changes to the constitution, while amendments are less so. (How’s that for clarity?) Whether a proposed change is one or the other is for the court to decide, not the drafters of the provision. A 1978 case, Amador Valley Joint Union High School District v State Board of Equalization, 22 Cal.3d 208 explained that a change will be considered a revision if it’s quantitatively extensive (like one proposed alteration, struck down by the court in 1948, that was less-than-lovingly referred to as the “ham and eggs” initiative for its muliplicity of subjects, sections, and articles) or qualitatively dramatic. As the court said in Amador, “even a relatively simple enactment may accomplish such far reaching changes in the nature our basic governmental plan as to amount to a revision….”  (p. 223)

Now we’re at the heart of the petitioners’ case: Prop 8 was a revision because it allows, at least in principle, the wholesale deprivation of fundamental rights — and allows this to happen to a class of people that the court itself has held are most in need of protection. Even though “just” one right is at stake here, if the court allows its ability to safeguard the minority’s rights to be overborne so easily, then there’s no limit to it. The voters could remove all legal protections from gays and lesbians — or for any other group, for that matter — as long as they did it in a piecemeal fashion. Strangely, the court declines to address this argument head-on. Instead, it does two things.

First, it exhaustively trudges through a host of cases testing the amendment/revision line, finding that almost any change has been upheld as an appropriate amendment (with the significant exception of a case that tried to deprive the court of the power to interpret its own state constitution in matters of criminal procedure, purporting to require the court to go no further than the U.S. Constitution requires).  But as even Ken Starr conceded at oral argument while defending Prop 8, none of these cases involves depriving a suspect class of fundamental rights. So what about that?

This brings us to the second point. The court simply sidestepped the broader concern about the potential for a step-by-step deprivation of rights:

“Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection…., there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public and private discrimination in all areas without legal recourse…would constitute a constitutional revision….” (P. 93, italcs in original)

But doesn’t Prop 8 itself create this possibility of a broader exclusion? I don’t see how it doesn’t. At least Justice Werdegar, in her concurrence, stated that a broader legal exclusion would amount to a revision, and took the majority to task for leaving open the opposite possibility. But her concurrence is itself unprincipled, because she offers no metric by which to measure whether a given act of constitutional discrimination would be “impermissible.”

Separation of Powers and Inalienable Rights

These two arguments got the quick brush-off. There’s no separation of powers argument, the court concluded, because we retain the right to interpret the state’s constitution; including, they noted (without apparent irony) the “new” one with Prop 8! This isn’t like the criminal procedure case we’ve discussed, because that was an attempt to strip the court of power to do what we do. But that power itself has constitutional limitations, and we remain able to enforce equal protection for gays and lesbians in every other area (at least until the electorate tells us not to).

The inalienable rights argument was intriguing; the AG had argued that the most fundamental guarantees of the state’s constitution transcend that document; the promise of “liberty” so eloquently defended by the U.S. Supreme Court in Lawrence v. Texas is at the very core of these rights. And these can’t be restricted without a compelling reason, not given here. (As you’ve likely guessed, this argument wasn’t dependent on the distinction between amendment and revision.)  The court found that this argument disregarded a line of cases that involved deprivations of liberty, and relied on “old school” notions of natural law to elevate “liberty” a higher order. The court had little patience for this effort.

Retroactivity Issue 

On the procedural issue of whether Prop 8 should apply retroactively to wipe out the 18,000 marriages that had already taken place, the court was clear and dismissive. The language of the amendment made no mention of retroactivity, and that’s required in order to overcome the presumption that laws only apply prospectively. Extrinsic sources (just in case they were relevant) didn’t help this argument, either: Prop 8 proponents stated that the amendment wouldn’t take away any rights, and the explanatory ballot materials were, at best, ambiguous. Not good enough.

———–

Standing firm was Justice Moreno. I will post on his dissent separately. For now, I offer these words of inspiration to close this long post. They’re from the Iowa Supreme Court’s decision in Varnum v. Brien, and were quoted by Justice Moreno in beginning his opinion:

“The absolute equality of all persons before the law [is] the very foundation principle of our government.”

Prop 8 Decision to Come Down Tomorrow? Here’s What to Look For.

May 20th, 2009 No comments

With a limited number of days remaining in which the California Supreme Court can hand down its monumental decision regarding the validity of Prop 8, the first murmuring has just been heard that tomorrow may be D-Day. (The story notes that police barricades are being moved into place in San Francisco, likely in anticipation of street actions there — protests or celebrations.)

As I live-blogged the argument, it seemed quickly evident that the court was going to uphold Prop 8 as a permissible amendment to the state’s constitution, but let stand the many thousands of marriages that had occurred during the several months of 2008 when same-sex marriages were legal. I still believe that’s what going to happen, but with all that’s been going on since then, there is some reason to question that outcome. Here are a few questions that the court may answer whenever it does issue its ruling:

(1)  Things have changed since the oral argument, and at a speed no one could have predicted. Iowa, Vermont and Maine — soon to be followed by New Hampshire, it seems — now have marriage equality. Will the court acknowledge these developments, and, if so, what impact will they have on the justices? My guess is that the court will express sympathy or empathy for the gay community (something no U.S. Supreme Court Justice is supposed to have, according to this fool) and celebrate these developments, but place its trust in the people to eventually extend the promise of equality — after all, the New England states mentioned above have achieved marriage equality legislatively, not by court order. This approach may make the court (and others?) feel better about what it’s doing.

(2) Whither willy-nilly? During the argument, Justice Kennard kept asking counsel opposing Prop 8 whether the court could “willy-nilly” disregard the will of the people. (In fact, she used the expression so often I was left wondering whether she’d just learned it.) I took her to mean that calling Prop 8 an impermissible “revision” to the state constitution rather than an allowable “amendment” would be an unprincipled, haphazard thing to do. But even Ken Starr, arguing for Prop 8, conceded that the case raised the unique issue of depriving a suspect class of a right that the court had declared fundamental. Thus, overturning it wouldn’t be “haphazard.” One could argue that Prop 8 really does constitute a fundamental change to the state’s constitution by restricting the court’s ability to interpret it. This argument blends almost seamlessly into the related point that Prop 8 purports to disrupt the established separation of powers — courts are the interpreters of constitutional guarantees. (The argument is summarized, and the brief linked, here. Scroll down to April 28.)

(3) What will the court say about taking rights from a class that, just last year, it  had declared to be entitled to the highest degree of protection? This question is obviously closely tied to the last one. The court’s decision to treat sexual orientation as a “suspect class” that triggers the highest level of judicial scrutiny (suspicion, really) was based on its finding that the gay community had historically been subject to discrimination, that laws treating the community differently bore no relation to the ability to contribute to society, and that gays were historically powerless.  Do subsequent developments make those observations less true, and reduce the need for heightened protection? If not, then the class is still suspect, and the rights are still fundamental. Can a simple majority vote change that?

(4) Another related question is whether any of the justices who opposed marriage equality last year might change their vote. This seems unlikely, but a justice who is especially respectful of stare decisis —  which says, in layperson’s  terms, that the court should respect its own precedents, overruling them only under exceptional circumstances — might look at matters this way: “I didn’t think that sexual orientation called for heightened scrutiny, but we (over my dissent) held that it did. That’s now the law and I’m bound to respect it. And if sexual orientation is a suspect class, and if same-sex couples have a constitutional right to marry, which we also held (again, over my dead… — I mean, over my dissent), then that right can’t be taken away so easily, if at all.”

Don’t expect this to happen, though. Stare decisis is like a raincoat that justices don and doff according to the prevailing weather.

(5) How ugly is it going to get?

(I’ll be back with a lay summary of the opinion shortly after it’s issued.)

Update: It’s now been confirmed that the opinion will not issue tomorrow. The court must issue the opinion within the next two weeks, though. I will supplement this post shortly before the decision issues, and then again to summarize and reflect on the opinion.  

Analysis of Iowa Marriage Equality Decision

April 3rd, 2009 2 comments

I’ve now finished reading the just-issued decision in Varnum v. Brien, in which the Iowa Supreme Court unanimously declared that the exclusion of same-sex couples from marriage violates the state’s constitutional guarantee of equal protection under the law. My goal here is provide a brief legal analysis that will be of use to lawyers and non-lawyers alike. (You can find a crisp analysis designed for law professors here.) Subsequent posts will aim for political and social context.

First, let me give away the outcome: The court declared that only full marriage rights — not some “virtual” equivalent like the civil union — could satisfy the state’s commitment to real equality. It appears that the decision will go into effect after twenty-one days, because that’s when the time to seek a rehearing (good luck with that!) runs out. So, marriage equality is a virtual certainty in Iowa, and very soon. Now to the case:

The court began with a recognition of what was at stake. After first describing the rich texture of the plaintiffs’ lives — nurses, social workers, business managers, church organists, some with kids (including foster children) — the court recognized that the deprivation of their rights was substantial, but that something greater was also implicated:

“Yet, perhaps the ultimated disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves the personal and public affirmation that accompanies marriage.” Bingo!

Next,  the court undertook a sober and deliberate analysis of its role within the constitutional framework: as the protector  of minority rights. Citing language from the U.S. Supreme Court’s decision in Lawrence v. Texas (the case upholding the right of gays and lesbians to private sexual intimacy), the Iowa Supreme Court  states that the founders of both the state and federal constitutions knew that “times can blind us to certain truths” that later become evident. The court was here referring to deep truths about equality and dignity that were its responsibility to defend, even where contrary laws “may be supported by strong and deep-seated traditional beliefs and popular opinion.”

Simply stated, then, the question the court put to itself on behalf of the same-sex couples who were excluded from marriage was this: “How can a state premised on the constitutional principle of equality justify exclusion of a class of Iowans from civil marriage?”

Not every classification is unconstitutional, though. Governments make distinctions all of the time, and most of these are accepted without much dissent. Bakeries may be allowed to stay open later than bars in residential neighborhoods. Those over a certain age may be asked to take road tests every year because of population-based evidence of the greater risk this class of drivers presents. But where the classification affects certain classes of people, it will be more closely scrutinized.

The Iowa court, following recent marriage equality decisions by the California and Connecticut Supreme Courts, found that sexual orientation was the kind of classification — a so-called “suspect class” — that triggers a higher level of scrutiny than courts typically train on classifications.1

What determines whether a group is a “suspect” class, thereby requiring the state to put up a greater defense of its law? The U.S. Supreme Court has identified four factors that are used in making this determination, and the court addressed all  four.

(1) Is there a history of discrimination against the class? To ask this question in the case of gays and lesbians is practically to answer it: Yes.

(2) Is the characteristic related to the individual’s ability to contribute to society? Drawing on Iowa’s increasing recognition of the full  citizenship of gays and lesbians (protection against discrimination and violence, sex education that respects all sexual orientations)  and the decisions by other courts on marriage equality (even the losing ones), the court also found this too plain to dispute: No, it’s not relevant.

(3)  Is the characteristic immutable? The court said something like this: Probably, but it really doesn’t matter because “sexual orientation is [so] central to personal identity” that it would be destructive to ask that it be changed.

(4) Is the group  politically powerless? This has been the sticking point for most of the courts that have declined to recognize sexual orientation, because certainly the LGBT community has had heady success recently. But the court said that there had been no legislative success on marriage equality (still true, although quite likely to change very soon) and that if current political powerlessness were required, then neither women nor even African-Americans would qualify today.

Ergo, the court would use heightened scrutiny to assess the legislature’s arguments for excluding same-sex couples form marriage.2 And once that level was reached, the court’s decision followed almost  inexorably. I want to very quickly discuss the state’s rejected justifications before moving to one final point.

One interest was in maintaining traditional marriage. But this argument was circular, said the court. We know you’re trying to do this, but doing it by excluding same-sex couples has to be justified independently. And there’s “no legitimate  notion that a more inclusive definition of marriage will transform civil marriage into something less than it presently is for heterosexuals.” This last statement, dropped casually into a footnote, sweeps away the oft-stated canard that marriage equality will “in a generation or two”cause the demise, or at least weakening, of marriage.

Then there were the arguments about marriage as the optimal environment for the raising of children and for the promotion of procreation. Under a heightened scrutiny analysis, these justifications didn’t get far. Social science research is directly contrary to the first, and as to the second: Does excluding gays and lesbians from marriage lead to more procreation? Only if, denied marriage, gays and lesbians will more likely procreate “the natural way.” But this doesn’t seem likely, and anyway wasn’t seriously advanced by the state as a possibility. (Do we really want gays and lesbians having children with members of the opposite sex, by the way? Think about it.)

The court then briskly disposed of the state’s remaining assertions. Excluding same-sex couples doesn’t “promote stability in opposite-sex relationship.” And even if it does “conserve scarce resources,” that could also be achieved by excluding any group from the benefits of marriage — including red-headed couples. (Is red-headedness immutable in the era of good coloring alternatives?)

I know this is an exceedingly long post, but this is an unusual case. Indulge me for one more minute: The court then discussed the religious objection to same-sex marriage, recognizing that it is often the true, if unstated, source of opposition. The justices noted, correctly I think, that the justifications anchored in the importance of the male-female dyad are really secular recastings of religious belief: religion made over into (one version of) natural law. Here’s the quote I loved on the religious issue:

“In the final analysis, we give  respect to the  views of all  Iowans on the issue of same-sex marriage — religious or otherwise — by giving respect to our constitutional principles.”

Well, amen.

  1. The state argued that the law prohibiting same-sex marriages wasn’t even sexual orientation discrimination because gays and lesbians could  marry — someone of the opposite sex. The court gave this  “argument” the respect it deserved: very little.
  2. Lawyers will be interested to know that the court applied intermediate level scrutiny, not strict scrutiny; like the Connecticut Supreme Court in Kerrigan, the Varnum court didn’t feel the need to choose once and for all between these levels given that the challenged marriage classification ran afoul of even intermediate scrutiny.

More on Prop 8: Quixotic Fundamental Rights

March 5th, 2009 No comments

Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.

(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)

The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty  exercise. Leave the amateurs out of it, please.

Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I  typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)         

Three Acts on Prop 8: II

March 5th, 2009 No comments

Well, perhaps I should have expected this: The overwhelming demand for access to the streaming video of the oral argument on Prop 8 means that I couldn’t get on line for quite some time. I just did and I’ll try to catch us up.

Within a few minutes, this looks quite grim. Two of the justices who had voted with the majority to are all over amici attorney Marshall, telling him that the California Constitution gives the voters quite broad ability to amend their constitution, and that Prop 8 is only “a limited exception” to equal protection.Now the discussion is about abolishing marriages in favor of civil unions for everyone. The attorney makes the argument that “nomenclature matters” citing Justice George’s opinion in the earlier case and answers a question by Justice Chin, to the effect that the state, if it’s going to get involved in the “marriage business” needs to do it equally.

The argument has moved to a discussion of the precedent, with Justice Werdeger asking whether there’s ever been a case where a fundamental right has been taken away — and the answer is no. She floats the idea that even if this isn’t a structural revision, it takes away fundamental rights and this IS a revision even if it doesn’t change the basic separation of powers. Justice George slams this, noting that busing and affirmative action referenda have been upheld and these affect fundamental rights (even though the revision v. amendment issue didn’t come up there).

Justice Corrigan tries to boil down the argument, suggesting that the “No on 8” forces are really arguing that any time you want to take a fundamental right away from a suspect class, it’s a revision. That simple. Justice George, who is up for reelection within the next couple of years, questioned whether you could grant a fundamental right through amendment but only take it away through revision. “Is it a one-way street?” Yes, said the attorney.

Justice Kennard finally got to the issue of retroactivity. Are the marriages performed before Prop 8 passed valid? Language in the Prop 8 materials says that “whenever and wherever performed” won’t be recognized. Attorney concedes that this could be read to invalidate marriages, but that (prodded by Kennard) this language is buried in the materials and shouldn’t suffice to overcome the presumption of non-retroactivity.

Next comes an attorney Stewart, representing the cities and towns and we’re back to retroactivity. She says that the language has to be unequivocal. She then fields a softball question suggesting due process problems with invalidating marriages retroactively. Kennard jumps in to help, reminding Stewart that the “whenever and wherever performed” is buried in the fifth paragraph of the rebuttal argument. Her vote on this issue is clear (to me). George wants to test the proposed test for revision proposed here. Asks about same-sex schools, or busing, and whether the proposed rule would render them revisions. Stewart stands firm and says yes.    

Stewart is devastating on the foundational importance of the equal protection guarantee as a compact “to treat each other equally.” Kennard disagrees, says that equal protection is evolving, unlike the structure of government. Stewart says that the fact that we interpret them in light of what we know at a particular time doesn’t make them unimportant. (Well, duh! But are they foundational? She didn’t really answer that.) Justice Kennard noted that sixty-three briefs have been filed, many stating that those justices who agreed that marriages must be granted to to same-sex couples must find Prop 8 invalid. She disagrees. Here, the issue is different: We have a pretty well-established body of law on what’s a revision and what is not. The cases don’t give strong support to the petitioner’s position, she says flatly. It simply overrules one “aspect” of the marriage cases. (Huh?) Cites other cases from other states supporting the position that this is amendment, not revision.

Stewart: This is fundamental. Majorities can protect themselves. She gets deeply into the statements of delegates in creating the state’s constitution, to powerful rhetorical effect.Now comes Mr. Krueger representing Attorney General Gerry Brown,  who has taken the unusual position that it doesn’t matter whether this is a revision or an amendment: It is simply invalid because beyond the power of the voters to remove a fundamental right. Here, I have lost the feed and will pause for air until I get it back (soon, I hope).   

Let’s see, I’ve missed about five minutes. Now Krueger is saying that the court interpreted the right to liberty in a way to make amending it to take this right away impossible. Now George is reading from the constitution’s description of the inalienable rights, including liberty. How do we define it? What’s the consequence of calling it “inalienable”? Krueger: We call it inalienable because it came first within the constitution. George: It’s just a matter of timing? Privacy, for example, came later. Is that less important? What about the right to fish?? So what is the right that can’t be removed? Krueger: The right to liberty.

Baxter is now asking about the death penalty situation, where the court held that capital punishment was cruel and unusual and against the “dignity of man” and the amendment process was validly used to effectively overrule that decision. This attorney for the state is clearly flummoxed now, but regains his footing somewhat. But I’m not sure Baxter (or anyone else) was convinced by his efforts. Krueger is having trouble. Not sufficiently versed in the case law. Does make the case that revisions can’t be used to take away inalienable rights. Interesting point is that the intervenors are disagreeing with the “natural law” argument — since so-called “natural law” seems to ground most of the arguments against same-sex marriage.        

Justice Kennard goes back to the breadth of the amendment power as provided by the California constitution. She’s getting annoying at this point, with endless non-questions and simply reiterating her point. Over. And over. And over. Krueger patiently explains that — yes, of course the people have the power to amend or revise the constitution.

I don’t think we’re going to get anything new thrown at the anti-Prop 8 side at this point. The argument is almost two hours old, and we still haven’t gotten to the attorneys supporting Prop 8. Unless the justices are equally scathing against the other side, I don’t see much chance that the court will toss out Prop 8.

I spoke too soon. Here’s something new. What if Prop 8 had passed without the Marriage Cases coming first? Krueger: Same analysis, but longer because first we’d have to argue that same-sex marriage was a fundamental right.

How do we know a fundamental right?, one justice asked. This is amazing to me given the court’s decision in the Marriage Cases. And Justice George makes it worse, diminishing the importance of his own decision in the Marriage Cases, suggesting that all one would have to do is simply “characterize something as a fundamental right” to say that it couldn’t be amended. But it’s not that simple, as the Marriage Cases state. The court certainly can discern what is a fundamental right. [This may be worth a whole separate post.]

Now they’re arguing about whether there’s a difference between inalienable and fundamental rights. And Justice Corrigan says: “Doesn’t your position boil down to the view that this court should throw out any amendment that it doesn’t like?” No. This court has said that the rights of same-sex couples to marry is fundamental and the state has no compelling reason to abridge it.

OK. Finally, the other side. Here comes the Evil Death (Kenneth) Starr. He starts by quoting former Justice Tobriner to the effect of the right of the people to change the constitution. He then sucks up to the justices by lauding their jurisprudence. Werdeger shuts him up, at least for a minute, by asking why this isn’t a revision given the far-reaching implications.

Starr: This would be unprecedented. He admits that this precise issue hasn’t come up because of the suspect classification issue. Goes through simply naming cases. Only a revision if it changes the fundamental structure of government — not if it takes away rights.George: What if there were a specific amendment that deleted the right of free speech? OK to do by amendment?

Starr: Even there, while it is unthinkable, not a limitation on the power of amendment. So this would be OK. Cites Justice Mosk’s concurrence in the death penalty case, in which he said that even though what the people did in restoring the death penalty was “macabre” and “unenlightened” he couldn’t stop it and it was valid as an amendment.

Werdegar:   Could a Romer v. Evans type of amendment have been OK?

Starr: Yes. People are sovereign and can do unwise things, including things “that tug at the equality principle.”

Well, at least he’s clear. This is a very unsympathetic argument. The people can do whatever they want. Any right can be removed by the simple initiative process. It’s only an impermissible revision if it changes the structure of government.

Justice Moreno couldn’t move him off this point.      

Starr goes on about how minor this is. Then he answers Justice Werdegar’s point that this precise issue has never come up, saying that the court has “said it without saying it.” 

Justice Chin comes back to the point about whether the state should get out of the marriage business. It could, says Starr (and might be inclined to do under the equality principle), but it’s not for the court to do. A recommendation is as far as the court should go.

Uh, oh. Here’s another ramble from Justice Kennard. She picks up on the AG’s theory and asks why it shouldn’t be adopted. The theory is too open-ended and hasn’t been used in principled ways. (One case apparently said there was an inalienable right to scalp theater tix.) Would this theory lean too heavily on natural law? Yes, Starr obligingly answered.

Kennard then asked about retroactivity: They’re not void ab initio but they are invalid. Trying to walk a thin line. Chin asks if it’s fair to throw all of this out, when people acted in reliance of what this court said the law was. Corrigan agreed, brushing aside the “swirl of uncertainty” argument that Starr tried to introduce. George: What if age of consent to marriage were raised to 21? Would marriages between 18-to-20 year olds no longer be married? Starr: No they wouldn’t be. But the law has in fact embraced ameliorative doctrines, such as the putative spouse doctrine (don’t ask!).

Corrigan won’t let go: Aren’t these couples entitled, at least as a matter of equity, entitled to rely on the law as we stated it? Starr: They were validly married but isn’t any more. “No longer valid or recognized….”

If I had to guess, I’d say that those married between June and November 4, 2008 will still be married. Going forward, forget it. It’s time to dive back into the political process. I don’t expect a unanimous decision on either issue, but I’d be surprised if either vote is close. (I do think that there’s at least a chance that the retroactivity issue will be unanimous.)

There’s rebuttal, but I will save further remarks for tomorrow’s post. I don’t expect anything revelatory to happen after about two-and-a-half hours.