Posted by Dale Carpenter:
California Supreme Court hears Prop 8 challenge tomorrow:
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236190354
The oral argument will be three hours long, from 9 a.m. to 12 p.m. You
can watch it at [1]this site. If in the state you can also watch the
oral argument on the California Channel, a cable public-affairs
station. At its website, the court has [2]a page devoted to the Prop 8
challenge, including links to all of the briefs filed on either side.
The main argument is that Prop 8 was a "revision" (not an "amendment")
to the state constitution requiring prior legislative approval and not
simply a majority vote of the people. The state attorney general,
Jerry Brown, makes the different and, shall we say, more creative,
argument that same-sex marriage is among the "inalienable" rights
protected by the state constitution that simply cannot be taken away.
Ken Starr has been making the primary case for upholding Prop 8 as a
valid "amendment" requiring only a simple majority vote.
On the revision vs. amendment question, the text and history of the
initiative process created in 1911 tell us little. The initiative
process was a Progressive reform designed to circumvent a state
legislature thought to be dominated by wealthy business interests.
Whatever else can be said of them, the contending sides in the SSM
debate are not robber barons.
The state court precedents don't provide a clear answer, either. As
usual, both sides can point to decisions (and to isolated passages in
decisions) that support their positions. One side argues that
California has a long history of direct democracy, which the state
courts have generally honored by liberally allowing constitutional
changes as "amendments." The other argues that in light of last May's
marriage decision, In re Marriage Cases, Prop 8 is unprecedented in
form: it strips a fundamental right from a vulnerable minority.
Starr's briefs in the case are lively and excellent in many ways, but
they never really come to grips with the California marriage decision
and its potentially game-changing significance for the Prop 8
challenge. That doesn't mean Prop 8 will lose. I've [3]previously
written that I think the petitioners have a good argument, but I still
doubt it will be a winning one.
The other important question raised by the case is the status of the
18,000 same-sex marriages entered between June and November 2008. The
plain text of Prop 8 supports an argument that these marriages are
invalid, in my view ("Only marriage between a man and a woman is valid
or recognized in California.") So the main issue is whether an
explicit statement about retroactive effect must be included when
legislation or constitutional change produces an important alteration
in a citizen's status and rights.
Tomorrow, throughout California and across the country, there will be
"viewing parties" to watch lawyers and judges thrust and parry over
Prop 8. It's the Super Bowl for SSM, though we won't know the winner
for weeks (the court has 90 days to issue an opinion). It'll be the
final word, until the next final word.
References
1. http://courtinfo.ca.gov/courts/supreme/highprofile/prop8viewing.htm
2. http://courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
3. http://volokh.com/posts/1226036505.shtml
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