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.