Nancy Polikoff

California Supreme Court to Hear Challenge to Prop 8

Filed By Nancy Polikoff | November 19, 2008 6:30 PM | comments

Filed in: Politics, The Movement
Tags: California marriage equality, California State Supreme Court, gay marriage, marriage equality, Prop 8, same-sex marriage

The California Supreme Court has just ruled legal-clipart.jpgthat it will hear the challenge to Prop filed by various groups, including the National Center for Lesbian Rights. While it doesn't mean we will win the case, had they refused to hear it the matter would have been tied up for a long time in the lower courts. The briefing will be done by January 21, 2009. And, as we all remember from the original suit, once the court hears arguments it must issue a ruling within 90 days.

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Well, at least we are being spared another cliff hanger this year. Two in one year have been more than enough for me.

On the other hand, I don't look forward to dragging this out in 2009, guaranteeing another series of months spent wondering when this bullshit will ever stop.

I'm cross-posting a comment from BTB in the hope that it might shed some light on the fact that Justice Kennard--who joined the majority in the marriage cases and wrote a separate concurrence to smack down the dissenters even harder (we lawyers call that a "benchslap")--voted to deny review of the challenge to Prop 8.


I read a thoughtful post on a legal blog that suggested the following:

"I think that Kennard wants to confirm that existing marriages are valid quickly and avoid the question on the constitutionality of prop. 8. I think when push comes to shove she will undoubtedly vote to strike prop. 8. She was hoping that by denying review for other than existing marriages that prop. 8 would be overturned by a popular vote before it reached the Supreme Court."

To my mind, this is probably what's going on with her vote to deny review. We can't forget that Justice Kennard stands alone on the California Court in her continuing advocacy for gay rights and same-sex marriage (case in point: she alone voted to uphold the marriages performed in San Francisco in 2004). Indeed, her separate concurrence in the marriage cases essentially wrote the book on why questions of equal protection and why the protection of minorities from hostile majorities are the unique--and inviolable--province of the judiciary. These constitutional principles, of course, reach far beyond the narrower question of gay rights.

Of course, the question of whether Prop 8 is an amendment or a revision is constitutionally unrelated to the questions of whether same-sex marriage is a fundamental right under the CA Constitution and whether homosexuals and same-sex couples are entitled to heightened judicial protection as a suspect class.

But unless Kennard has had some massive change of heart about the latter issues since May 15 (unlikely), it is almost unthinkable that, as a conceptual matter, she would vote to uphold ANY "amendment" that strips a fundamental right (marriage, voting, exercise of religion) from a vulnerable minority (gays, blacks, Mormons) that has been identified as a suspect class under the equal protection clause of the CA Constitution.

Given her prior positions, it is far likelier that she views an initiative like Prop 8 as a revision, given the singular change that it works regarding the foundational meanings of "fundamental right" and "equal protection."

(Keep in mind that the federal constitutional principles applied to protect some of these rights and classes of people are NOT in play here, because the CA Constitution itself says that it is wholly-independent from the federal constitution. The majority opinion in the marriage cases confirmed this.)

In light of Kennard's past positions on such issues, therefore, my educated guess is that she's hoping to delay a constitutional ruling until after the 2010 midterms (or perhaps even later) for at least two reasons:

(1) The possibility that Prop. 8 is repealed by a subsequent ballot initiative, thus mooting the question of its constitutionality by removing it from the constitution.

(2) She hopes to avoid the threatened recall fight for ALL Justices voting to strike Prop 8, because we know that a recall battle will be BLOODY. She's a liberal, but she's also a pragmatist.

**DISCLAIMER: My comments are based on (1) Justice Kennard's prior statements and (2) the political realities facing the California Supreme Court. They are merely educated guesses and should not be construed as anything more.**

Honestly, the Q community's response to PROP 8 and discrimination in general is tantamount to a child asking a parent for a cookie.

"May I have a cookie, please?"

"No, not right now. You may have one in 2028,
or maybe if you're really good by 2015"

Since when do Americans beg for what they are entitled to? Don't we believe we deserve it?