It's Starting To Look Grim For The Campaign Against Prop. 8

Opponents of Prop. 8, California’s same-sex marriage ban, received a blow yesterday when California’s Supreme Court appeared skeptical of several of their arguments.

Challengers have leveled two major legal criticisms at Prop. 8. The first is that the proposition is not merely an amendment to the state constitution, but a more severe “revision.” Amendments can be made through the proposition system, but revisions can only be enacted by the state legislature or by constitutional convention. California Chief Justice Ronald George seemed to find this argument dubious, asking anti-Prop. 8 lawyers whether they felt that the right to gay marriage could be given by a proposition, rather than taken away. “Are you saying it is a one-way street,” he asked, “that you can extend rights by way of initiative and take them away only by revision, the same rights?” And Justice Joyce Kennard argued that to call Prop. 8 a revision was to underestimate the legal power of California voters. “I think what you are overlooking is the very broad powers of the people to amend the Constitution,” she said.

The second criticism of Prop. 8, advanced by State Attorney General Jerry Brown, is that the proposition repeals an “inalienable right” without sufficient justification. But justices countered that there was no obvious way to identify such inalienable rights. George mentioned the right to amend the state constitution, asking, “is that an inalienable right?”

Protesters from both sides gathered in San Francisco’s Civic Center Plaza for the hearing. One supporter of Prop. 8 carried a sign reading, “Those who hate real marriage should not have the right to pollute it.” On the other side were messages like, “The gay agenda . . . our hope . . . our prayer . . . our dream” and “The gay agenda: 1) Equality. 2) Shopping. 3) See #1.” But if Prop. 8 is upheld, the real next step for its opponents will be campaigning for the recognition of existing gay marriages — and perhaps trying to get the state “out of the marriage business” entirely.

On the first point, it’s hard to tell how the Court feels. Kennard said that Prop. 8 “said that only a marriage between a man and a woman would be recognized regardless of where or when performed,” but that this requirement “was buried in the middle of the rebuttal argument.” George said the language of the proposition might have been intentionally vague. And Justice Ming W. Chin questioned the ethics of revoking once-legal marriages, asking, “Is that really fair to the people who depended on what this court said was the law of the land?”

The second point, supported by an editorial in the LA Times, hinges on questions also posed by Chin:

What if the state merely licensed or just recognized private, contractual civil unions with all the benefits of marriage, and couples went to the religious or private institution of their choice to sanctify their vows? Would that resolve the legal differences between Proposition 8 and the state Supreme Court’s 2008 ruling that gay and lesbian couples were entitled to the same marital rights as heterosexuals?

The Times thinks it would, and that since marriage is changing for both gay and straight people, it’s time for the state to reevaluate its role. However, the editorial notes that such a reevaluation wouldn’t be easy: “by the time Californians are ready to embrace such a seemingly novel idea, they will probably also be ready to vote for same-sex marriage.”

California Supreme Court Looks Unlikely To Kill Proposition 8 [LA Times]
Loudly And Colorfully, Opposing Sides Debate Proposition 8 [LA Times]
A Way Out Of Prop. 8 [LA Times]
Gay Marriage: Is California’s Supreme Court Shifting? [Time]