Prop 8 Proponents Ask California Supreme Court to Stop Marriages

“If I make improper suggestions
…
Desperate but not serious”

Here they go again:  Bypassing the lower state courts, the Proponents of Proposition 8 have filed a petition for a writ of mandate (here) asking the California Supreme Court to order the clerks of the counties in California to stop issuing marriage licenses to same-sex couples.  It seems very unlikely that the California Supreme Court would exercise its discretion to take up this matter and then rule in favor of the proponents, especially since those proponents are or come very close to asking the state court to interfere with a federal court injunction.

In a nutshell, the proponents are arguing first that Prop 8 is actually constitutional, that federal judge Vaughn Walker was mistaken in ruling to the contrary after the trial on Prop 8, and that the U.S. Supreme Court has not disagreed with them because it dismissed the Prop 8 appeal on standing grounds rather than reaching the constitutional equal protection or right to marry issues.  Second, they argue that county clerks have a ministerial duty to enforce the marriage laws of the state, which in their view include Prop 8, and that by ordering them not to, State Registrar Tony Agurto, following the legal conclusion of Attorney General Kamala Harris, violated the provision of the California Constitution that bars administrative agencies and at least some governmental executive officials from refusing to enforce state laws on the ground that they’re unconstitutional unless an appellate court has made a determination that the state law at issue is indeed unconstitutional.  (Although the U.S. Court of Appeals for the Ninth Circuit did “make a determination” that Prop 8 is unconstitutional, the proponents of the measure argue that since the U.S. Supreme Court vacated that decision, it cannot satisfy this state constitutional clause.)  And, third, they argue that the issue is so important, implicating as it does (in their view) the efficacy of the state initiative process, that these supposedly lawless same-sex marriages must be stopped immediately.

Unless a majority of the California Supreme Court Justices are extremely peeved that the U.S. Supreme Court ruled that the Prop 8 proponents lacked federal court standing, this latest effort to revive Prop 8 (or at least to demonstrate to constituents the proponents’ need for funds to keep up their committed fight for the measure’s legal life) is unlikely to go anywhere.  It’s certainly unlikely to result in an immediate order against issuing marriage licenses to same-sex couples.  However important the rule of law and the California initiative process may be, the petition contains no explanation for why those cannot be vindicated through an orderly judicial process that resolves Prop 8’s constitutionality and an order at the end of it to resume enforcing Prop 8, if that judicial process concludes it really is constitutional.

Moreover, this petition dangerously veers into or close to asserting the power of state courts to interfere with federal court injunctions.  Indeed, the proponents’ arguments make claims about the federal court’s supposed lack of authority of have bound certain defendants in certain ways.  Given our system of federalism, and specifically of the supremacy of federal law, state courts just are not allowed to disregard or narrow federal court orders (as was made clear to the chagrin of the segregationist South in the mid twentieth century).  Even if they were right that the state Attorney General erred in concluding that county clerks are within the terms of the federal court injunction against Prop 8 as employees controlled or supervised by the state defendants, the proper route to clarify the scope of a federal court injunction is to return to that federal court and ask it to rule.

Finally, in what is hard to believe is a good faith mistake, the proponents do not acknowledge that the City and County of San Francisco was allowed by Judge Walker to intervene as a plaintiff challenging Prop 8.  Instead, they refer repeatedly to “the four plaintiffs,” meaning the two same-sex couples who were plaintiffs.  They then argue that because those couples are now married, the federal injunction cannot even apply to Los Angeles and Alameda Counties, where those couples reside.  (Again, that’s a question about the proper scope of the federal injunction that the state courts cannot do anything about.)  But since San Francisco was a prevailing plaintiff, and the federal court injunction prohibits Prop 8 from being enforced against it, at a very minimum it can continue to issue marriage licenses to same-sex couples even if no other county could (which I do not believe to be the case).  Because Californians can get a marriage license in any county regardless of their residence or where the wedding will be held in the state, the Prop 8 proponents desperate, last-ditch (one hopes!) petition here cannot stop marriage equality in the state.  The futility of their petition is, thus, one more reason why the California Supreme Court is likely to deny it.  For the sake of those same-sex couples planning marriages and weddings, I hope the court does so quickly.

CA Supreme Court's Disappointing Standing Decision

Well, my heart went "boom"

The California Supreme Court issued the latest entry in the legal paper trail of the saga of Proposition 8 today.  Prop 8, recall, is California’s initiative constitutional amendment that stripped same-sex couples of their previously fundamental right to marry under the California Constitution.  Answering a question that had been certified by the U.S. Court of Appeals for the Ninth Circuit, the court ruled “that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under ... the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”  With this ruling, the dispute over Prop 8's constitutionality returns to the U.S. Court of Appeals for the Ninth Circuit, where that federal court now seems more likely to rule that Prop 8's official sponsors ("the Proponents") have the legal authority or standing to appeal Judge Walker's August 2010 decision holding Prop 8 unconstitutional.

I discussed the procedural posture of the challenge to Prop 8 and issues of the Proponents standing to appeal Walker's decision more fully here and here (among others).  For now, let me repeat that to be able to take an appeal in federal court, the Proponents must have a sufficient stake in the dispute that they have "standing."  Either they must have what the Supreme Court of the United States (SCOTUS) has called a "concrete and particularized interest" in the dispute, or they must somehow be able to step into the shoes of the state of California since pretty much everyone agrees that a state would have standing in federal court to defend its laws.  Prior SCOTUS case law makes it exceeding unlikely that the Proponents would have a particularized interest in Prop 8's validity, and indeed CASC does not even address that part of the Ninth Circuit's question.  Rather, it essentially holds that California law authorizes initiative proponents to step into the state's shoes when the elected state officers who ordinarily defend such measures choose not to.

But from where does this authority stem? CASC repeatedly says that Proponents enjoy this authority "under state law."  And, as quoted in the opening paragraph here, the court says that it is the provisions of the state constitution providing for the initiative power and the provisions of the state's election statutes specifying the role that initiative sponsors such as the Proponents play in getting an initiative adopted that confer this authority on ballot sponsors.  The court does not actually say that it is interpreting any of these provisions as the source of the authority to defend and to appeal adverse judgments -- and with good reason.  As Ted Olson emphasized in oral argument to the court, the California constitution expressly says that "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."  It says nothing about anyone defending enacted initiatives (or any other post-enactment function).  Likewise, the state's Election Code details the role that initiative sponsors have prior to enactment of their measures, and says nothing whatsoever about any post-enactment role for initiative sponsors such as the Proponents of Prop 8.  Ordinary principles of statutory and constitutional interpretation thus would seem to weigh heavily against CASC's conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision.  The court's ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code -- "to guard the people's right to exercise the initiative power."

There is evidence in the CASC's opinion to support this characterization.  The court quoted prior opinions where it had said of the initiative power that it is "the duty of the courts to jealously guard this right of the people."  To that end, the court reaffirmed, "if doubts can reasonably be resolved in favor of the use of [the initiative] power, courts will preserve it."  The trouble, of course, is that, as described above, the reserved initiative power is the power of the people to propose California statutory or constitutional measures and to vote them up or down.  To propose and to vote, as Ted Olson rightly emphasized at oral argument last December.

How then does the court justify creating its own gap-filling rule allowing initiative sponsors the authority to assert the state's interest in an enacted initiative to defend a measure or to appeal a decision invalidating it? The court quotes the same decisions, specifically their language saying that courts should "apply a liberal construction to [the initiative] power wherever it is challenged in order that the right be not improperly annulled."

Set aside the problem that the court is not interpreting but clearly adding to the words of the state constitution and the Election Code.  Where is the risk that an enacted initiative would be "nullified," whether "directly or indirectly" (as the court says elsewhere in the opinion) by acts of elected state officers?  Even if "the [California] Constitution‘s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents' efforts to ‘propose statutes and amendments to the Constitution’ or the People‘s right ‘to adopt or reject’ such propositions" (in the Ninth Circuit's words, quoted by the court), how could elected officers do that nullifying?  No one was claiming that governors and attorney generals could simply disregard an enacted initiative and treat it as a nullity.  As the same-sex couple plaintiffs pointed out and the court conceded, "invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or

Attorney General but from a decision by the federal district court after a contested

trial."  Thus, it is far from necessary to vest initiative proponents with authority to represent the states interest to keep elected officers from nullifying measures the people adopt.

Faced with that inescapable reality, the court retreated from its ostensible concern with preventing initiatives from being nullified, to a concern with keeping them from being "undermined."  At one point, the court suggests that "the California initiative process may be undermined if a California initiative goes undefended in a federal proceeding."  Explaining at greater length, the court argued:

“If public officials refuse to provide [a competent and spirited] defense [of an initiative], the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.”

But this is simply wrong.  The court emphasizes that it is affirming only a limited authority of initiative sponsors to defend initiatives, not to take any affirmative enforcement measures.  So assume that someone has brought suit to challenge the validity of an enacted initiative.  If the plaintiffs litigate in state court, the state courts are free to allow the initiative's sponsors to intervene as defendants, and once they do so, they may present any non-frivolous legal arguments in defense of the initiative they had proposed.  (Alternatively, the state court could let the sponsors participate as amicus curiae or "friends of the court," submit briefs, and engage in oral arguments.)  So, there is no risk of "effective nullification." 

On the other hand, if the plaintiffs litigate in federal court, they have to satisfy federal standing requirements.  If they do not have a sufficiently concrete and particularized injury as a result of the initiative, then the federal court will dismiss their suit, and the initiative will not be nullified.  But if the plaintiffs do have an adequate injury to proceed, then the initiative sponsors would not have to satisfy federal standing requirements to intervene as defendants -- there is already an adequate "case or controversy" (in the terminology of federal standing rules) between the plaintiffs and the state officer defendants who are by assumption refusing to defend the measure.  This is what happened in the Prop 8 litigation.  So, the initiative gets a "competent and spirited defense," and it therefore cannot be pejoratively labeled a state officer "nullification" if a federal judge concludes after an adversarial trial that the measure violates the federal constitution.  Only were state officers to refuse to defend and the federal court also to refuse to allow the sponsors to intervene as defendants would there remotely be a risk of nullification.  But then, either the federal appeals court might well deem it to be an abuse of the trial court's discretion to refuse such intervention -- nullifying the nullification worry -- or state law could much more narrowly vest proponents with authority to step into the state's shoes under those narrow circumstances for purposes of defending the initiative at trial.

So, perhaps the California Supreme Court’s opinion offers some justification for it concluding that it is necessary to use its power to create a rule (of state law) authorizing initiative sponsors to represent the state’s interests under certain rare conditions.  But once anyone has made “a full and robust defense” of an initiative at trial, and thus we can be confident that the trial court will be “aware of and address[] the full range of legal arguments that reasonably may be proffered in the measure’s defense,” a decision holding the measure unconstitutional is no improper nullification, whether or not that judgment gets appealed.  The California Supreme Court’s opinion thus has not justified extending the authority it by near-fiat gave initiative sponsors in today’s decision beyond defending the initiative the sponsors helped enact to appealing from trial court rulings invalidating the initiative.  It is unjustified to suggest that a law that is invalidated after a full adversarial trial has been somehow improperly “nullified” by a state officer’s decision not to appeal the trial court’s judgment.  Indeed, it is an insult to the integrity of federal trial court judges (who along with non-defending governors and attorneys general are the persons about whom the court is worrying).  True, a federal trial court might make a mistake.  But so might a federal appellate court.  And so might the California Supreme Court.  But the prospect of mistake, or even an actual mistake, cannot transform judgment into usurpation.  To the extent the California Supreme Court is worried about “the appearance of the fairness of the” federal judicial process, it is taking on the responsibility of a different level and branch of government: the federal judiciary.

The California Supreme Court’s only halfway real effort to justify its repeated afterthought of “or appeal” whenever it talks about proponents “defending” a measure is relegated to a footnote.  There, the court claims that “Ordinarily, … public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court.… The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.”  This passage is awfully weak.  It shifts away from the court’s main trope about elected officers “nullifying” initiative measures to a much more nebulous claim about “undermin[ing] the initiative power,” and offers no empirical support for its claim about what is ordinarily done nor any normative argument about why the people of the state need someone besides elected officials to have the ability to take appeals from valid federal judgments holding initiatives unconstitutional for that legislative initiative power to be robust.

The court’s reasoning addressing the plaintiffs’ objection to creating new state law giving initiative sponsors the kind of authority at issue here is not much better.  The court argues that “because there is no reason to doubt that the California Legislature … would have authority to step in to assert the state’s interest in the validity of a statute enacted by the Legislature if the state’s executive officials have declined to defend the statute‘s validity in a court proceeding, we conclude that the people are no less entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf when public officials decline to defend the measure.”  But if the legislature were to intervene to defend a law, it would be pursuant to a vote of the legislature or perhaps one of its chambers, either directly authorizing intervention in a particular case, or an earlier vote vesting authority to intervene in legislative leadership, a house, a committee, or some other subset.  Here, even assuming the people (acting in parallel fashion to the legislature, by enacting law via the initiative process) are “entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf,” there is no evidence that the people have chosen to have the state’s interest on their behalf.  As Ted Olson emphasized at oral argument before the California Supreme court, although perhaps not as strongly as he might have, Prop 8 contained no clause granting standing to defend it to its sponsors.  Had there been such language, as there was in Prop 22 (the statutory ban on same-sex couples marrying adopted by the initiative process in 2000), then the same vote that adopted Prop 8 as an amendment to the state constitution also would have expressed the voters’ will to be represented by this particular self-appointed group of California voters.  But there was not.  So it is really the will of the California Supreme Court Justices, and not the will of the people, that appointed Prop 8 sponsors as champions of the people’s interests.

And the identity of these champions matters.  The court recognized that “Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state‘s interest in the validity of a challenged initiative measure.”  But the court’s rejection of this argument completely misses the mark. 

The court somewhat defensively replies that its ruling “does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question.”  But that’s exactly the plaintiffs’ point!  Unlike the attorney general and the governor, the sponsors of a measure are just one or more California voters.  They have not been elected, and therefore cannot be turned out of office by the voters, so this unaccountable collection of California voters cannot claim that basis of democratic legitimacy to represent the interests of the people of the state as a whole, which is what “the State’s interests” are. 

The fact that initiative sponsors “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding,” as the court feebly notes, does not go far enough.  One does not, merely by suing or defending, become obligated to uphold the California and U.S. Constitutions.  Unlike a governor or attorney general, therefore, initiative sponsors therefore can make arguments that are patently antithetical to the foundational law governing in California.  There was a reason that the Governor and the Attorney General of California chose not to appeal Judge Walker’s ruling:  They believed Walker was correct to rule Prop 8 unconstitutional.  When same-sex couples are being denied their basic constitutional rights every day that Prop 8 (or any other initiative that has been held unconstitutional by a trial court) is in effect, fidelity to the Constitution is absolutely a trait that we should want in those empowered to represent the state’s interest.  (The court’s arguments about “public interest” mandate actions and “private attorney general” cases are somewhat more helpful to it, but the fact that they were “initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority” does not enhance their legitimacy.)

Regrettably, all of the shortcoming’s in the court’s analyses are probably somewhat beside the point.  The California Supreme Court as a general matter is the ultimate judicial authority on the content or meaning of California law.  Thus, the innovative and problematic principle it articulated is an authoritative articulation of state law.  The Ninth Circuit and even the U.S. Supreme Court are generally not able to hold that state law means anything different.

That does not mean that the Ninth Circuit would be completely compelled to grant standing just because of what the California Supreme Court said today.  Footnote 7 of the court’s opinion notes that the authority to appeal in California state court litigation follows merely from being a party at trial, but also that the rule is different in federal court, where even a party must satisfy federal standing requirements to be able to take an appeal.  Footnote 27 says that SCOTUS’s “decision in Arizonans for Official English imposes no impediment to a state court‘s determination that, under state law, an initiative proponent has the authority to intervene as of right in an action in state court challenging the validity of an initiative measure.”  Taken together, this provides support for an argument and leaves room for the Ninth Circuit to conclude that, in federal court under federal law, today’s decision by the California Supreme Court does not dictate the conclusion that the Prop 8 Proponents do indeed have standing to appeal Judge Walker’s decision.

However, based on the argument before the Ninth Circuit last December, most observers do not think that Judge Reinhardt wants to hold that the proponents lack standing.  He was clearly frustrated with the possibility that he might not be able to reach the merits of the constitutional challenge to Prop 8 and instead might have to dismiss the appeal on the grounds that the Proponents lack standing to appeal.  If this reading is right, he may be looking for a reason to grant them such standing, and today’s California Supreme court decision may provide him just what he’s looking for.

If that is the case, the panel can be expected to rule on the constitutional questions fairly quickly (likely after allowing the parties to submit briefs on the significance of today’s opinion and perhaps after allowing argument).  Then, each side can be expected to ask SCOTUS to agree to review the case.  (It’s a matter of discretion whether SCOTUS accepts most appeals.)  Since neither the plaintiffs nor the Prop 8 Proponents wanted to have a factual trial in the first case, it is possibly but not highly likely that either side would ask for en banc review by a larger panel of eleven Ninth Circuit judges before asking SCOTUS to get in on the act.  If the Ninth Circuit does rule on the merits, then a narrower, California-specific equal protection holding that Prop 8 was unconstitutional would be less likely to be reversed by SCOTUS than a broader right-to-marry ruling that would invalidate marriage restrictions in 44 states.  Judge Walker’s opinion contained both kinds of rulings.  Only time, though not that much of it, will tell what kind of ruling the Ninth Circuit will make.

California Supreme Court to Rule on Prop 8 Case

Just thinking about/Tomorrow

The California Supreme Court has announced that it will rule in the Prop 8 standingt-to-appeal litigation (see my previous blog post here, which includes links to earlier, more detailed explanatory posts) tomorrow, Thursday, November 17, at 10:00 a.m.  Crossing my fingers the decision will not reflect the confusion some of the Justices displayed at oral argument.  I will blog tomorrow about the court's ruling and its possible significance when the case challenging Prop 8 now returns to the U.S. Court of Appeals for the Ninth Circuit.

Prop 8 Proponents Seek to Vitiate Marriages of Same-Sex Couples

“I'm holding on with both hands and both feet, oh/Promise that you won't pull the rug out from under me”


With closing arguments today in the lawsuit challenging California’s Proposition 8, the attorneys on both sides have filed answers to a series of questions posed by Chief Judge Vaughn Walker of the United States District Court for the Northern District of California. And in a bit of shameless overreaching, the attorneys for Prop 8’s official sponsors (the “defendant-intervenors” in the litigation) are seeking to overturn the estimated 18,000 marriages entered into by same-sex couples before Prop 8 was adopted.

After California’s voters approved Prop 8 in November 2008, it was challenged on state law grounds. In May 2009, the Supreme Court of California rejected those arguments, acting over Associate Justice Carlos Moreno’s cogent dissent. The Court was unanimous, however, in holding that Prop 8 had no effect on marriages entered into before it was adopted. Because that question of the meaning of state law was completely within the control of the California high court, there was no basis in law for Prop 8’s sponsors to ask the U.S. Supreme Court to review that conclusion.

Now, however, the attorneys for Prop 8’s sponsors are seeking to do an end run around that binding holding under the guise of legal remedies. One question Judge Walker had posed was: “If the court finds Proposition 8 to be unconstitutional, what remedy would ‘yield to the constitutional expression of the people of California’s will’?” The answer given by the defendant-intervenors’ attorneys? “[S]ustain Proposition 8 by giving it retrospective effect or invalidating the conflicting feature of California law.”

Translation: If Judge Walker thinks it unconstitutional for California to recognize marriages of some same-sex couples but not others depending on the date when they got married, Prop 8’s sponsors say Walker should order California to deny ALL same-sex couples’ marriages. Even though the federal courts don’t have the power here to tell the state supreme court that it is wrong about what state law (Prop 8) means.

Technically, the defendant-intervenors’ attorneys say they’re not actually asking Judge Walker to invalidate these 18,000 marriages, the San Francisco Chronicle reports, “but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.” So, in their view, these legal marriages should be legally inoperative in California.

Prop 8’s sponsors lost the fight to extend Prop 8 to existing marriages in 2009. They will almost certainly lose their outrageous effort to relitigate the meaning of Prop 8 this time.


-David B. Cruz

Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

Prop 8 Ruling Tuesday, May 26

"The waiting is the hardest part"

The California Supreme Court has given notice that it will hand down its decision in the challenge to Proposition 8 on Tuesday, May 26. Try not to let this preoccupy you during the Memorial Day weekend.

"A Horse with No Name"?

Chief Justice George and Marriage Without the Name

During oral argument yesterday in the California Supreme Court, Chief Justice Ronald George more than once questioned attorneys for those challenging Proposition 8 about the scope of the measure. I think his questions may not have fully appreciated the structure of the challengers’ “revision” argument (or may just have been designed to elicit a public articulation by counsel). But it seemed that the Chief Justice and the attorneys may have been slightly talking past one another.

In his first questions and comments to Shannon Minter, Legal Director of the National Center for Lesbian Rights arguing on behalf of challengers to Prop 8, the Chief Justice suggested that the petitioners assumed that Prop 8 overturned not only same-sex couples right to marry but also the California Supreme Court’s holding in the marriage cases last year that sexual orientation was a suspect classification and laws discriminating against gay and lesbian people subject to non-deferential “strict scrutiny” review by courts. “To the extent Proposition 8 is to be construed narrowly,” not affecting the other holdings the Court rendered, Chief Justice George suggested, “your argument that this is a wholesale revision as opposed to an amendment is weakened.”

Mr. Minter quickly clarified that he did not assume that Prop 8 touched those other holdings of the marriage cases. But that position does not weaken the argument that Prop 8 should be judged a “revision” to the state constitution. The Chief Justice’s phrasing “wholesale revision” is, as he is well aware, not the terminology used by the state constitution, which simply distinguishes between a power to revise and a power to amend the constitution (without defining either or the difference). “Wholesale revision” sounds like what the Court in past decisions has called a “quantitative revision” to the constitution, one which ranges so broadly and changes or adds so much to the document that it cannot be judged a mere, minor perfecting “amendment.” Given the number of clauses in the state constitution that do guarantee equality in various ways, there is a nonfrivolous argument that Prop 8 is a quantitative restriction. But it’s not the strongest basis for the challenge to the measure, and Minter appropriately noted that the parties were not making that argument when Justice Kennard asked about this a little further into the argument.

Rather, petitioners are arguing that Proposition 8 amounts to what the Court has termed a “qualitative amendment,” one that although not so voluminous in its changes nonetheless has a profound effect on existing constitutional arrangements. It is the denial of equal access to a fundamental right based on a bare majority vote, which is all that Prop 8 needed to pass, that cuts the judiciary out of its longstanding role of protecting fundamental rights and particularly vulnerable minorities, diminishes the foundational guarantees of equality in the state constitution, correspondingly deprives California’s democracy of the assurance of equal citizenship and equal protection that is necessary to the consent of the governed and democratic legitimacy, and marks the measure as a revision and not a mere amendment to the state constitution. All that holds true even though Prop 8 leaves intact other salutary aspects of the California Supreme Court’s decision in the marriage cases.

Yet another point of possible communication failure may have come with respect to the question whether Proposition 8 leaves intact rights that come with marriage, other than what Chief Justice George termed “the nomenclature” or “the label” marriage.

When the Chief Justice next addressed Minter, George asked: “What about the other rights though that go beyond the mere designation. In answering that, what significance if any do you put to the rebuttal argument [in the official ballot pamphlet that] stated … Your yes vote means that only marriage between a man and a woman will be valid or recognized in California, but Proposition 8 will not take away any other rights or benefits of gay couples?” (As a sidenote, it was a little perplexing to hear the Chief Justice speak about “mere designation” after writing last year’s opinion that so eloquently articulated the ways in which same-sex couples’ being treated the same as different-sex couples in their relationships, including access to the designation marriage, was integral to the equal dignity and respect required by the state constitution.)

Likewise, when Chief Justice George was speaking with Kenneth Starr, Dean of the Pepperdine Law School and counsel for the official proponents of Proposition 8 defending the measure, Dean Starr tried to insist that Prop 8 did not “invalidate” the marriages of same-sex couples entered into before the election, that there remained a “full panoply of rights.” The Chief Justice immediately pressed him, “So they keep the rights?” Whereupon Starr backed off or clarified, saying that the pre-election marriages of same-sex couples were not voided retroactively from the outset, but that California could not generally treat those couples who entered them as marriages after the election. But George wanted to know why that was, why they wouldn’t keep the rights other than the name, “even though the rebuttal argument [in the ballot pamphlet] says Proposition 8 takes away no other rights or benefits?”

What Chief Justice George might have been contemplating was a state of affairs in which the Court holds that Proposition 8 takes away the power of the state of California to call same-sex couples “married” or their relationships “marriages,” but leaves in place all the rights acquired by couples who entered into their former-marriages before the election, both rights that were used before the election and ongoing rights from November 5, 2008 forward. These presumably would not be domestic partnerships, because there are some rights of marriage that the domestic parternships lack (not to mention that they would not have been entered into in the fashion that the domestic partnership law provides). They would rather be some new, as yet unnamed relationship created by the state constitution as a back-up, partial-equality measure if Proposition 8 became a valid part of the constitution but only stripped away “the nomenclature” of marriage. A horse with no name, as it were.

That would not be an unreasonable reading of the effect of Proposition 8 in light of its language and the official ballot description. It’s a little unusual – but then again, Proposition 8 was itself an unprecedented purported exercise of the amendment power. And it would also seem to suggest that the domestic partnership law would have to be broadened, by virtue of the California constitution, to be identical to state marriage law except for the name.

"Mama take just a little bit from my heart"

Justice Kennard and "small" deviations from equality

The California Supreme Court held oral arguments today in the litigation challenging Proposition 8, which the voters approved to change the state constitution to strip away the right to marry from same-sex couples. It’s always perilous to read too much into the Justices’ questions. But one line of questioning by Justice Joyce Kennard suggests a possible misapprehension about the nature of the arguments against the validity of Proposition 8, which I hope does not ultimately lead her astray. Here’s my reasoning. (All quotations are from my notes from watching the webcast of the oral arguments and have not been verified against the archived footage.)

Shannon Minter, Legal Director of the National Center for Lesbian Rights, argued first on behalf of the challengers of Prop 8. Justice Kennard asked Mr. Minter: “Is it your argument in this proceeding that the passage of Proposition 8 also took away in addition to the label of ‘marriage’ the core of the substantive rights of marriage that the majority of this court outlined in the marriage cases last year? Continuing a similar theme, Justice Kennard questioned Raymond Marshall who argued for a variety of civil rights groups opposed to Proposition 8: “Given the precedential values that have been decided by this Court in previous decisions, how do you distinguish them here where the people left in place most of what this Court declared to be proper under the California constitution?” And: “What about the argument that what we are dealing with in this particular case is a narrow exception to equal protection, by denying same-sex couples the label of ‘marriage,’ but leaving intact the substantive rights this Court established in the marriage cases last year? …. You haven’t eliminated or taken away equal protection.” And when Mr. Minter stepped up for rebuttal, Justice Kennard incredulously asked: “Is it still your view that the sky has fallen in as a result of Proposition 8 and gays and lesbians are left with nothing?”

One possible implication of these lines of questioning would be to suggest that Proposition 8 isn’t a revision if it only deprives same-sex couples of part of the right to marry and doesn’t wholly strip gay and lesbian people of all equal protection rights. But those positions are not being argued by any of the parties or amici in the case, and for good reason. Let me take them in order.

First, it would be a colossally bad move for the Court to embrace a standard that said a proposed constitutional change would count as a revision if but only if it takes away all benefit a group of people might get from a right but not if it takes away only a portion. Were that the rule, initiative drafters could always take care to preserve some application of the right they want to strip from a group and thereby bring it within the scope of the initiative-amendment power, rather than having to pursue the more deliberative and cumbersome revision process (which requires supermajority votes in each house of the state legislature). An all-or-nothing rule of this sort would be readily evaded and would defeat the point of the California constitution’s provision of different ways to make two different kinds of changes.

The argument could not really be salvaged by adopting a standard that says, a proposed constitutional change counts as an amendment (adoptable via initiative) if it takes away only a little bit of a constitutional right, but not if it takes away too much of the right. Balancing tests may be inevitable in constitutional law, but if the California Supreme Court thinks the doctrinal rules they adopt ought to give at least some guidance to voters and legislators, something less mushy than “I know it when I see it” (which was former U.S. Supreme Court Justice Potter Stewart’s unhelpful characterization of “obscenity,” a content-free standard that Justice Carlos Moreno quoted in today’s arguments).

Second, the observation that gay and lesbian people still enjoy some equal protection rights after Proposition 8 is not really responsive to the challengers’ argument. They contend that Prop 8 should be deemed a revision to the state constitution that could only originate in the legislature, not via petition-initiative the way Prop 8 was adopted. The reason they offer is that it strips away not just any right but a right that is “fundamental” in our state constitution (here, the right to marry), and that it takes that right away not just from any group but from a group (here, lesbigay persons) defined by a suspect classification (here, sexual orientation). By doing that, Prop 8 doubly undermines the historic role of the court and denies it the ability to enforce the principles of equality that are at the very foundation of the California constitution.

The challengers are not claiming that gay and lesbian people would currently enjoy no constitutional equality rights if Prop 8 is part of the constitution. If they were making that hyperbolic claim, then the assumptions of Kennard’s questions would be adequate rejoinder to the challengers’ argument.

The challenge to Proposition 8 instead rests on the very sensible contention that, if Proposition 8 is a permissible exercise of the amendment power, then the Court would have to include that any law which took away any right from any group of people would also have to be permissible, and what that means is that any possible equal protection holding of the state supreme court could be overruled by a bare majority of voters (after a petition got signatures from a mere 8% of those who voted in the last election for governor). And, as I believe Therese Stewart, arguing for the City and County of San Francisco put it, “a guarantee of equal protection that is changeable by a majority is no guarantee at all.

To understand why, first note that typically a “fundamental right” is the kind of right most carefully protected by the judiciary from governmental infringement. Last year the California Supreme Court held that the right to marry was fundamental. And the Court was clearly and explicitly talking about the right to enter the institution called “marriage” that different-sex couples were allowed to enter. Prop 8 takes that right away just from same-sex couples. Since fundamental rights are the most judicially protected rights, no other right would have a stronger claim on the Court. So, if a majority can do it with the right to marry, it can do it with any right.

Next bear in mind that discrimination against a group defined by a suspect classification (like a racial minority, or women, or lesbigay people) is subject to more powerful judicial scrutiny than any other form of discrimination. So if it’s okay to take away a fundamental right from such a group, as Prop 8 attempts, then a mere amendment passed by a bare majority of the electorate could take away a fundamental right from any group.

What the challengers are arguing, therefore, is that it’s not just the dignitary harm that Proposition 8 inflicts upon same-sex couples and their families that renders Prop 8 a revision. Rather, it is the principle that a decision upholding Prop 8 would have to embody: Any right may be taken away from any group by a mere amendment passed by a bare majority of voters, with no filter of legislative deliberation required (as would be the case for a proposed constitutional revision).

Dean Kenneth Starr, arguing for the official proponents of Proposition 8, did not shrink from that conclusion. He made clear that he thought there was no limit in the California constitution to what voters could do to strip away any rights from any group. That might be regrettable, but it’s just the constitution we have, he basically said.

Now, he did offer the Justices reassurance by arguing that the “backstop” or “failsafe” to prevent horrid occurrences from happening was the U.S. Constitution. But this argument is in tension with the long-held position that the rights guarantees of the California constitution are independent of the federal constitution. Our rights under the state constitution are to be interpreted as forces of their own, not dependent upon the federal constitution or the federal government. The point of our California constitution is to secure the blessings of liberty, which include the freedom to marry, as counsel for the challengers observed during argument today.

Let us hope that at least four members of the California Supreme Court remember that and do not shy away from their duty to preserve the foundational commitment to equality enshrined throughout the California Constitution. As Ms. Stewart reminded the Court, democracy can only lay claim to legitimacy if it embraces the commitment to equal protection. Proposition 8 attempts to erode that commitment, taking away the most judicially protected kind of right from a group subject to the highest level of judicial protection. The fact that it leaves other rights or other aspects of a right intact – for now – should not be enough to obscure the pernicious way it says to the Court, “no matter how strong your constitutional ruling, a bare majority can wipe it out with the most casual kind of constitutional change.”

Assembly Judiciary Committee Embraces Revision Argument

Supports H.R. 5, Rejects Proposition 8

Ron Buckmire, who blogs under The Mad Professah Lectures, has reported that the California Assembly Judiciary Committee has just voted 7-3 ("all Republicans voting no") to approve House Resolution 5, which condemns Proposition 8 as an improper attempted revision of the California Constitution that failed to follow the proper procedures. While H.R. 5 has no binding legal force, if the House were to adopt it, this would further demonstrate the state legislature's commitment to constitutional equality principles and could signal that a judicial decision invalidating Proposition 8 would not be a very countermajoritarian ruling.

Prop 8 Challenge Scheduled

Oral Argument Date Set

From the California Supreme Court web site: "The Supreme Court has announced that an oral argument will be held in the Prop. 8 cases on Thursday, March 5, 2009, from 9:00 a.m. to 12:00 p.m. The court will issue a written opinion in the cases within 90 days of oral argument." The arguments will be carried on cable on the California Channel. The Court's news release is here.

Attorney General Sides with Marriage Equality

Jerry Brown's Brief Argues Prop 8 Is Invalid

The brief in the Proposition 8 litigation filed by Jerry Brown, the state's Attorney General, agrees with the petitioners challenging Prop 8 that the measure is a more profound revision to the Constitution, not a minor amendment, and therefore unconstitutional because it cannot be adopted through the initiative process that was used. While this does not guarantee that a majority of the California Supreme Court Justices will agree, it is a big development in the case and likely to weigh heavily in the Justices' minds.

UPDATE: Actually, the Attorney General's argument is that, although the challengers have not to his mind shown that Prop 8 counts as a revision, Prop 8 is nonetheless invalid because it attempts to eliminate fundamental rights without a compelling justification, which in his view is not a power encompassed by the initiative-amendment power. So, although he doesn't agree with the revision argument, Jerry Brown agrees with the challengers that Prop 8 is not within the initiative power. Interesting nuance, perhaps offering one or more Justices a third path, one that doesn't accept the revision argument but that nonetheless holds Prop 8 to be invalid.

Prop 8 Defenders Bring Out Big Gun

Kenneth Starr to represent Proposition 8's official proponents

Today, December 19, is the deadline for the briefs of the defenders of the validity of Proposition 8 to be filed in the California Supreme Court. ProtectMarriage.com - Yes on 8 has announced in a press release that Pepperdine Dean Kenneth W. Starr (remember him from his stint as Special Prosecutor in Whitewater/Monica Lewinsky affair?) will be representing the official ballot proponents in the state supreme court both defending Prop 8's validity (no surprise on that ground) and arguing that Prop 8 also doesn't allow California to continue to treat the same-sex couples married before the election as married (also no surprise, given statements on the Yes on 8 web site, even though the official ballot title and language were not nearly so clear about this kind of retroactive effect).

Kennard Conundrum?

Meaning of California Supreme Court Justice's Vote Not to Hear Prop 8 Challenges

The Los Angeles Times has reported here that "legal experts" are puzzled by California Supreme Court Associate Justice Joyce Kennard's statement when the court decided to hear the challenges to Prop 8. The court's order noted that Justice Kennard "would deny these petitions without prejudice to the filing in this court of an appropriate answer to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption."

The Times notes that Justice Kennard's "vote against hearing the legal challenges [might have been] procedural -- for example, she might have wanted them to be filed in lower courts first . . . ." But the paper then curiously claims that "a close reading of the court's one-page order suggests that gay-rights advocates may have lost a usually predictable ally in their effort to overturn Proposition 8." Perhaps Kennard has already decided she doesn't accept the interpretation of constitutional "revision" advanced by Prop 8's challengers.

To support this interpretation, which I shall call the pessimistic reading of Justice Kennard's statement, the Times reasons as follows:

The order said Kennard would hear a new case to resolve the validity of the 18,000 same-sex marriages "without prejudice" -- a phrase that indicates she was open to arguments on the issue. But she declined to modify her denial of the Proposition 8 challenges with those same words.

But this reading is flawed.

What Justice Kennard said was that she would deny these petitions challenging Prop 8 without prejudice to -- without harming -- the Prop 8 challengers' ability to file new suits about Prop 8's meaning in the California Supreme Court. A denial of the petition without qualifying language is non-precedential and would leave the parties free to file a new suit making precisely the same arguments in state trial court. (Legal beagles can find confirmation of this claim in the California Supreme Court's decision in Funeral Directors Association of Los Angeles & Southern California v. Board of Funeral Directors & Embalmers of California, 22 Cal. 2d 104, 136 P.2d 785 (1943).) So, even if the Times is reading the scope of the "without prejudice" caveat correctly, it does not mean that Justice Kennard said she would have voted against the constitutional challenge to Proposition 8 on the merits. Rather, she just didn't vote now to hear the case in the state supreme court originally.

So, while we cannot know what was in Justice Kennard's mind unless she tells us, there is less to support the pessimistic reading than the Times suggested.

On the other hand, there is more to support an optimistic reading than the Times article includes. As I just explained, Justice Kennard's preferred vote to deny the petition for a writ of mandamus (the technical term for the lawsuit filed in the California Supreme Court by by those challenging Proposition 8) is not a vote on the merits of that argument. It would not count as an adverse decision against the challengers even if she had a majority to go along with her. The challengers would be free to re-start a legal challenge to Prop 8 by filing a complaint in the trial court. Whoever lost would certainly appeal, and whoever lost in the Court of Appeal would ask the state supreme court to hear a further appeal, which it would be free to do even having earlier denied the Prop 8 challengers' petitions.

And it is plausible to think that Justice Kennard had exactly that in mind, rather than a belief that the challengers' argument was wrong. In a 1999 decision in Senate of the State of California v. Jones (988 P.2d 1089, 90 Cal. Rptr. 2d 810), a majority of the court considered a case arguing that a proposed Proposition 24 should be struck from the ballot for various constitutional reasons, including a claim that it violated the rule limiting initiatives to a single subject and a claim that it would amount to a "revision" of the state constitution , not a minor "amendment" of it, and so must start in the legislature. (That is the same sort of revision claim at the heart of the current challenges to Proposition 8.) The majority ruled that proposed Prop 24 violated the single-subject rule, and it never went before the voters.

Justice Kennard dissented (joined by Justice Janice Rogers Brown), but she did not reach the merits of the single-subject or revision arguments. She objected to what she called the majority's "hasty decision to declare invalid" that measure. She thought there would be plenty of time to decide the issue later if need be.

So, on the optimistic reading, Justice Kennard would deny the petitions challenging Prop 8 because she saw no need to "rush to decision" (to quote her Jones dissent again) about whether Prop 8 was an invalid revision or a valid amendment to the state constitution. The "without prejudice" qualification could have reflected a view that for the already married same-sex couples, there was an important reason for the California Supreme Court to decide whether they were affected without waiting for litigation to work its way up through the state court system – to remove any uncertainty about the validity of those marriages. (On this view, Kennard's statement could also be evidence that she's leaning toward holding that Prop 8 would, if valid, operate purely prospectively and not touch the existing marriages.)

Granted, Jones was a pre-election review case where the court set itself an even tighter schedule than it did when it decided to hear the challenges to Prop 8. But the reasons Kennard wanted the court to delay there could also be applicable here: "this challenge to Proposition [8] presents issues that are close and difficult, and because there has been inadequate time to give these issues the thoughtful attention and deliberation they deserve."

So, we really are left trying to read tea leaves, but the leaves don't tilt against the challenges to Proposition 8 the way the LA Times suggested.

Marriage & Equality Rights to Return to California Supreme Court

Court grants review in challenges to Prop 8

As widely expected, the California Supreme Court issued an order (here) indicating that it would decide whether Prop 8 is invalid as a revision of the state constitution. In addition, the court will determine whether it is invalid as a violation of separation of powers principles (an argument made in the petition filed by Gloria Allred) and whether or not Prop 8 has any effect on same-sex couples married before the election. Also no huge surprise, the court denied the requests for a preliminary stay of Prop 8. The court has set an expedited schedule for briefing, which will be completed in January.

Court Lets California Constitution Amendment Fight Continue

The California Supreme Court has ruled in Bennett v. Bowen, the case filed seeking to have Proposition 8 removed from the November 4 ballot. (Prop 8 would amend the state constitution to deny same-sex couples the right to marry.) The Court summarily denied the Application for Stay and Petition for Extraordinary Relief, Including Writ of Mandate. See the July 16 entry in the Docket for the case. With that unsurprising development, the battle over the proposed amendment will certainly continue in earnest.

"Should I Stay or Should I Go?"

By its original 4-3 majority, he California Supreme Court has denied the requests for rehearing and that it stay the effect of its decision in In re Marriage Cases until after the voters decide in November whether to amend the state Constitution to bar the state from recognizing marriages for same-sex couples. (The court's news release and order are here.) This comes as no surprise to me and most scholars who've commented on the requests, but it does clear the way for counties to start issuing marriage licenses to same-sex couples without fear of liability as early as 5:00 p.m. on Monday, June 16.

"It Doesn't Matter Your Opinion"

Practically speaking, Traci Adams may not be right (see her song "You Are Not God"). Be that as it may, a new Field poll taken in the wake of the California Supreme Court's In re Marriage Cases shows that, even taking into account the margin of error, a majority of registered voters in California now support the right of same-sex couples to marry and oppose the November ballot initiative to amend the Constitution to take away that right. Of course, this is a different result from a Los Angeles Times poll last week, which found bare majorities disapproving of the state Supreme Court decision and supporting the initiative. The new poll from the highly respected outfit may be expected to worry proponents of amending the California Constitution and to galvanize those seeking to keep the state from denying members of same-sex couples the right to marry the person they love.

I'm Getting Married in the Morning

The California Supreme Court has just held, 4-3, that the state constitution requires the government to allow same-sex couples to marry civilly. Chief Justice George wrote the majority opinion, joined by Justices Kennard, Werdegar, and Moreno. The court held that the least deferential form of review applied -- "strict scrutiny" -- because the exclusion of same-sex couples from civil marriage discriminated on the basis of sexual orientation and because it "impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple." More details soon.

Now, it might not actually be in the morning. Under Rule of Court 8.528(b), the decision will become final in 30 days unless the court orders otherwise. Notably, today's decision does not follow Vermont's or Massachusett's lead in offering legislators 6 months to fix the constitutional problem. In part, that seems unneeded because those states lacked the fairly comprehensive domestic partnership regime California enjoys. What the court instead said was that "Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court." Nothing should keep a county (say, San Francisco) that wanted to from complying with the judgment before 30 days have run.

California, Here I Come?

I'm already in the state, but others might end up traveling here: The California Supreme Court has now posted on its web site that the decision in the marriage cases (seeking the right to marry for same-sex couples) will be issued tomorrow. Generally they post decisions at 10:00 a.m. The opinion should be available here tomorrow at around 10:00.

Tea Leaves and Sympathy

Divining case outcomes from questions and answers at oral arguments is perilous business in the best of circumstances. In the context of last week’s arguments before the California Supreme Court in the high-profile cases seeking the right to marry for same-sex couples, trying to determine the Justices’ votes based on their questions and comments is probably a fools errand.

The Los Angeles Times, however, concludes: “Three of the court’s seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman[.]” Although the Times does not specify whom it meant, my observation of the arguments leads me to suspect the paper is referring to Associate JusticesMarvin Baxter, Ming Chin, and Carol Corrigan. While the Times could perhaps be right about these Justices’ sympathies, I would not be certain.

The strongest of the Times’ calls is probably Justice Chin. He repeatedly pressed attorneys for the plaintiffs to agree that the rights and obligations provided by California to same-sex couples who register as domestic partners are “substantially” equal to those afforded different-sex couples who marry civilly. In responses to arguments that the exclusion of same-sex couples from civil marriage was nonetheless a deprivation of equal protection of the laws, he questioned: “But doesn’t that place rhetoric over reality?” But even Chin asked the attorney for the Proposition 22 Legal Defense Fund about parallels between the treatment of African Americans and the treatment of gay and lesbian persons: “But aren't the problems similar and haven’t the gay and lesbian community members gone through very similar kinds of discrimination?”

Justice Baxter also expressed a fair amount of skepticism. Curiously, though, he pushed a number of attorneys to state their agreement that if Proposition 22 (see Law of Unintended Consequences from March 29) governs not only the out-of-state marriages it was advertised as denying recognition to, but also marriages contracted within California, the legislature would lack the power to let same-sex couples marry while Prop 22 is on the books. Although this might be a sign that he is unsympathetic to the plaintiffs’ narrow interpretation of Prop 22, it could also be a suggestion that the state constitution precludes the legislature from looking out for the equality rights of lesbian and gay Californians in the face of anti-gay statutes adopted via ballot measures, leaving that job to fall elsewhere – perhaps to the Court?

Third, and in a similar vein, Justice Corrigan forced the attorney representing Governor Schwarznegger to agree with her that the issue of whether same-sex couples should be allowed to marry couldn’t really be left up to the legislative process per se if the Court concluded that Prop 22 applied not just to out-of-state marriages but also to marriages contracted within California; since the legislature cannot override a ballot initiative, “it might be somewhat more accurate to say you would leave it up to the democratic process.” She repeatedly worried about the point in time at which the plaintiffs believed the refusal to recognize marriages between same-sex couples “became” unconstitutional and how the Court could know whether the people of California were far enough along in their understanding of the evolution of marriage to open that institution to same-sex couples. “That to me is the essential question here; if society is different now how can we say that the majority of Californians have turned the corner, made this change, we now as the body politic are ready?”

But Justice Corrigan’s questions too were far from one-sided. When the attorney for the Proposition 22 Legal Defense Fund attempted to argue that procreation provided a rational basis for the government to exclude same-sex couples from civil marriage, the Justice asked: “Well then should we have marriage laws that say , that say you can’t marry unless you are prepared to have children, or capable of having children, or your marriage doesn’t count until you do have children? I’m puzzled by this somewhat narrow definition of why the state gets involved. Certainly that is a very important aspect of this institution, but it is not the sine qua non, is it?”

Ultimately, trying to discern the Justices sympathies from the questions at last week’s oral argument is probably not much more effective than trying to read tea leaves, and whether she was speaking about individual Justices or the state Supreme Court as a body, Justice Kennard probably summed it up best: “You don’t know where we’re going.”