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California Supreme Court to Listen to Prop 8 Arguments March 5

Supremes

Via the Mercury News:

"In a statement released Tuesday, the high court set three hours of arguments for its calendar in San Francisco, setting the stage for the justices to consider a series of legal challenges to voter-approved Proposition 8. Civil rights groups and a number of cities and counties, led by San Francisco and Santa Clara County, sued after the November election, arguing that the ballot initiative is invalid and should be struck down...Attorney General Jerry Brown, in an unusual move, is not defending the law, arguing that Proposition 8 should be struck down because it erased an existing constitutional right. The Supreme Court agreed to hear the case last year, and will decide not only the legality of Proposition 8, but also the fate of thousands of same-sex couples who married before voters approved the measure. The justices have 90 days from the March 5 hearing to decide the case."

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  1. Set your DVRs! There was also an article in the LA Times where they said this:

    UC Berkeley emeritus law professor Stephen Barnett said Tuesday that both challenges were "long shots."

    "Brown's is stronger because it has never been tried before, so it's got that going for it, whereas there is a lot of law about what's a constitutional revision," he said. Still, Barnett said he doubted that the moderate, Republican-dominated court would adopt Brown's theory because he said it could have far-reaching consequences.

    I don't understand why the press has to always interject spin into a story. It doesn't matter what anyone's opinion is - the CA Supreme Court will make the decision - and personally - I don't view it as a long shot. I don't see how any court in their right mind would allow basic rights to be eliminated by majority vote. And as for Brown's theory... what "far-reaching" consequences? Basically, the constitution says certain rights are inalienable. If the people want to change that, they can, but they must have a constitutional revision to remove it. How is that far reaching? It drives me crazy when the press lets people make open ended spin type remarks and don't follow it up with a simple question.

    Posted by: Mike | Feb 4, 2009 7:14:14 AM


  2. Popular opinion *always* matters - sometimes, it just doesn't matter enough. Let's hope this is one of those times.

    Human pride may be on our side as well, since several of these justices had their legal opinions on same sex marriage rebuked by proposition 8. This would be their chance to say "no, actually, fuck *you*!" by striking down prop 8...all in the name of judicial objectivity, of course.

    Still, I have to go for the longshot call on this one. 55-45 odds. Slightly in our favor.

    Posted by: Yeek | Feb 4, 2009 7:48:38 AM


  3. Mike: If the court uphold the ruling then Prop 8 does have far reaching consequences. Let's not forget that it was this Republican court who decided to give gays the right of marriage. The nationwide protests have proven that this is something that will have a serious negative impact on civil rights if it is upheld. If the people who don't want gays to marry really care about this issue then where is their counter protest. What, maybe one or two people showing up? They have it so easy. Just walk to a voting booth, pull the lever and bigotry is done. What do we do? Fight tooth and nail every day of our lives just to have the same rights as everybody else. Gay rights is not a difference of opinion, it is our livelihood.

    Posted by: Aiden Raccoon | Feb 4, 2009 7:56:34 AM


  4. Great. March 5 is my birthday.

    Lets make it a good one, CA SC.

    Posted by: Wes | Feb 4, 2009 9:32:25 AM


  5. Barnett is talking out of his ass. No, there is not a law about what's a constitutional revision. There are maybe five or six cases on that point, all of which have been thoroughly argued. And unfortunately, although the broad language about the difference supports our side, the actual application seems to favor the bigots. Jerry Brown's argument is novel and there aren't necessarily cases against it, but it really would require "judicial activism" to adopt it, and this is not an activist Court. So - speaking as a lawyer who's read all of the parties' briefs and several of the amicus briefs - I think we're doomed.

    I do think we'll win retroactivity, though. Precedent is pretty clearly on our side -- including the fact that when California abolished common-law marriage, it didn't retroactively invalidate such marriages.

    It is going to end up looking like baby-splitting, but I think that is selling the Court short. If they rule against us, it will be because they feel constrained by existing law, regardless of how they feel personally, and regardless of how unfair it is that CA allows fundamental rights to be undermined by a bare majority of the popular vote. So I hope people on both sides treat the Court with respect, even though I suspect both sides will have something to complain about.

    Posted by: Brian | Feb 4, 2009 11:39:37 AM


  6. I don't know. With the California Supreme Court, reading the tea leaves has been an exercise in fustration for me.

    Usually, with a clearly ideological court like the United States Supreme Court, it is clear who've won by the end of oral arguments. And with the exception of O'Connor and (now) Kennedy, the philosophical divisions seem obvious. But the moderate Republicans at the CSC usually keep their cards pretty close to their robes. This is especially true of George and Kennard.

    Based on the tone of the oral arguments in 2008, I thought the court would uphold the ban on same-sex marriage for sure. Only Moreno - the most liberal justice and a Democrat - showed any inclination that he'd overturn the law. And that wasn't indicative of anything because Moreno's often the lone dissenter.

    Posted by: John in CA | Feb 4, 2009 12:32:13 PM


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