Posted by Dale Carpenter:
The Prop 8 challenge after today's oral argument:
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236284958
I�m out of the business of predicting with confidence what the
California Supreme Court will do based on its oral arguments. So I�ll
predict without confidence that: (1) the court will hold that
Proposition 8 was a valid amendment, but (2) will also hold that the
18,000 same-sex marriages entered between June and November continue
to be recognized and valid in California.
It seemed to me that Chief Justice George and Justice Kennard, both in
the 4-justice majority in last May�s marriage decision, were quite
skeptical of the argument that Prop 8 was a revision requiring prior
legislative approval. Maybe they were being devil�s advocates. But
losing those two votes, if they�ve been lost, probably means losing on
the challenge to Prop 8.
In principle, the justices� votes on whether there is a right to
same-sex marriage and on whether a proposition repealing that right is
an amendment, are independent questions. A judge could believe there�s
a fundamental right to same-sex marriage but that the state
constitution liberally allows amendments by simple majority votes. On
the other hand, a judge could believe there�s no fundamental right to
same-sex marriage, but think that once the right is recognized, the
elimination of a fundamental right for a suspect class is such a
monumental act, and is fraught with so many dangers if allowed to
stand as a precedent, that it can be accomplished only by revision.
The main hope, such as it remains, for opponents of Prop 8 lies in the
recognition of several justices today, including at least one who
dissented from last May�s decision, that Prop 8 is unprecedented and
thus calls for a new articulation of what constitutes a revision. Dean
Starr agreed the �precise issue has not been before this Court.� As I
wrote in response to one commenter yesterday:
I don't think the question is so much whether the precedents
"support" the petitioners as it is whether the precedents even
address a case like Prop 8. There's never been an amendment in
California or elsewhere that (1) stripped a judicially declared
"fundamental right" (a term of art that doesn't just mean things
that are important to people) from (2) a judicially-protected
suspect class (another term of art that doesn't just mean any
political minority). (There have been other anti-SSM amendments, of
course, but never in the teeth of a judicial decision the other way
on these points.) . . .
It's not true that only quantitatively large changes have been held
to be revisions, and the petitioners make no quantitative claim
here. Qualititatively significant changes can be revisions, as
well. . . .
The question next would be: have the past cases closed and finally
defined the set of "qualitative" constitutional changes that should
be routed through the more deliberative, laborious, and
consensus-dependent revision process? If there's a case to be made
that the set isn't closed, it's hard to imagine a stronger
candidate than one in which a suspect class loses a fundamental
right on the say-so of 52% of the population. . . .
If the California Supreme Court rules in favor of Prop 8, it seems
to me it will need to do one of two things: (1) back off from one
or more of its rationales from the marriage decision, or (2)
candidly acknowledge that a bare majority of Californians can limit
fundamental rights for anyone, including vulnerable minorities,
under the state constitution. It's hard for me to see how either
option would be attractive to the court.
One more brief note from today�s argument. If it wasn�t clear before
today, it is now clear that Attorney General Jerry Brown�s role in the
case has not only been unhelpful to the petitioners, but has
undermined it. His view is that Prop 8 is an amendment rather than a
revision �under existing cases� but that Prop 8 is unconstitutional
because it took away a right that is on an unspecified and growing
list of �inalienable,� natural rights that can never be taken away by
any constitutional change process. Brown thus undermines the
petitioners on their strongest argument (the constitutional-procedural
one) and offers instead a much weaker one (a
constitutional-substantive one). It was plain in oral argument that
none of the justices were buying it, and that Brown�s lawyer, given an
impossible position to defend, could not defend it.
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