Paper: Supreme Court May Reveal Prop 8 Decision Tomorrow

The California Supreme Court may reveal its decision on Proposition 8 as early as tomorrow, the L.A. Times reports:

"By now, the court already has drafted a decision on the case, with an
author and at least three other justices willing to sign it. Oral
arguments sometimes result in changes to the draft, but rarely do they
change the majority position. The ruling is due in 90 days. Chief Justice Ronald M. George, who wrote the historic May 15, 2008,
decision that gave same-sex couples the right to marry, will be the one
to watch during the hearing because he is often in the majority and
usually writes the rulings in the most controversial cases."

Attorneys Shannon Minter, who argued the successful case for same-sex marriage last year, and former Clinton prosecutor Kenneth Starr will present arguments for and against Prop 8.

The paper also claims, "Most legal analysts expect that the court will garner enough votes to
uphold existing marriages but not enough to overturn Proposition 8. The
dissenters in May's 4-3 marriage ruling said the decision should be
left to the voters."

Rex Wockner informs us that the hearings will be streamed live online at CalChannel. California viewers can find a TV cable channel in their area as well.

California Attorney General Jerry Brown published a piece in the Huffington Post yesterday reiterating his position that Proposition 8 be overturned.

Said Brown: "The case touches the heart of our democracy and poses a profound
question: can a bare majority of voters strip away an inalienable right
through the initiative process? If so, what possible meaning does the
word inalienable have? The state faced a dilemma like this before. In 1964, 65 percent of
California voters approved Proposition 14, which would have legalized
racial discrimination in the selling or renting of housing. Both the
California and U.S. Supreme Courts struck down this proposition,
concluding that it amounted to an unconstitutional denial of rights. As California's Attorney General, I believe the Court should strike
down Proposition 8 for remarkably similar reasons — because it
unconstitutionally discriminates against same-sex couples and deprives
them of the fundamental right to marry."

Crowds are expected to descend on the state capitol tomorrow for what is likely the state's most-watched case in history. As I noted earlier this week, vigils are to be held this evening across California.

Vigil information here.

You may have missed…
Arguments Challenging Proposition 8 to Be Heard Thursday [tr]


  1. Matt says

    it seems to me, being a non-legal mind, that Professor Kmiec is supporting a position held by many in the GLBT community: namely, the state should be entirely out of the “marriage” business and should only be conferring civil equality to all couples, gay or straight. those couples can then choose to hold a religious marriage ceremony in their house of worship if they so desire, but those ceremonies are symbolic and confer no additional legal rights. therefore, GLBT and straight couples get full civil equality, and anyone can choose to have a church party.

    i welcome any feedback from anyone who has a better grasp of legal mumbo-jumbo.

  2. says

    I just can’t imagine that it can be upheld. I don’t mean to reiterate but marriage is considered an INALIENABLE right in the state of California and these rights cannot be denied to any suspect class, sexual orientation being one of them. It doesn’t get any clearer than that. The constitution also states that “A person can choose to marry any person of their choice”.

    Both houses even passed resolutions supporting its repeal. The Attorney General supports its repeal. Nearly half of California supports its repeal and do the other half REALLY care? Of course they don’t. Most people who voted yes probably don’t even know what’s going on because this isn’t an issue that affects their lives.

  3. Leland Frances says

    Don’t be fooled by Jerry Brown’s posturing. He’s the same guy who actively [and unnecessarily] asked the same court to rule against gay marriage equality last year.

    This is no “road to Damascus” conversion, but a naked, hoped-for road to the governor’s mansion.

  4. John K. says

    Well said Celia. Every citizen of California should hope and pray that the Supreme Court throw out Prop. 8 tomorrow. If not, we get to do this ALL over again in two years, and then again two years after that if we don’t win. And make no mistake, WE WILL WIN! You lost 20 percentage points in the last 8 years. You’ve only got a cushion of 2 percentage points left. You can keep wasting everyone’s time and money, or you can accept the fact that you’ve already lost and stand aside.

  5. John K. says

    AHHHHH! Sorry, I wrote out a very long comment, and then accidentally pasted over it with a comment from another article! I’m very upset now

  6. philberto says

    Kenneth Starr is proving he is still as pathetic as he was nine years ago when he failed to bring down Bill Clinton. This has nothing to do with prop 8 and everything to do with Starr trying to change his image and no matter what he says or does he will still be a sad fat little man for the rest of his life!!!

  7. John K. says

    Ok, so basically what I said is that I hope the Court strikes down Prop. 8, but I’m not too optimistic. It seems like we always lose by a vote or by one person standing in the way (Schwarzenegger).

    I think the Court might write three opinions to get itself out of the line of fire as much as possible. Three justices vote to overturn Prop. 8 as an invalid revision. Three justices vote to uphold Prop. 8 because sexual orientation is not a suspect class (these would be the dissenters from the first marriage case agreeing with themselves and not honoring that case as precedent). Then, a lone justice (probably Chief Justice George or more likely Justice Kennard) will write separately upholding Prop. 8 because the People can take away whatever rights they want by simple amendment, even rights of protected minorities.

    This situation would do three things: It would uphold Prop. 8 (4 votes: the three original dissenters and either George or Kennard), it would maintain sexual orientation as a suspect class (only the original three dissenters say otherwise), and it would leave open the question of whether other protected classes could have their rights taken away (there would actually only be one vote saying they could). Obviously, a vote could shift here or there and keep the same outcome.

    This seems like the best way for the Court to save its skin while not rendering the California Constitution completely toothless to protect minority rights (except gay rights, of course).

    The only other alternative for them to strike down Prop. 8 is to admit that the rights of other minorities can be taken away just as easily. They certainly could do that, but I get the feeling they will not want to do that. This is the only thing that is keeping hope alive for me right now. Obviously, the cleanest decision would be a narrow decision that said taking fundamental rights away from a suspect class only amounts to such a large change that it is a revision and cannot be enacted through the initiative process. But, the justices put their jobs at risk doing that, as Prop. 8 supporters are vengeful and I believe they would care more about ousting these justices in a recall or retention election than Prop. 8 opponents care about defending them (I make this statement based on pre-election polls that said the average Prop. 8 supporter felt the issue was more important to them than the average Prop. 8 opponent). I would hope this wouldn’t enter the equation, but these justices are human.

    Bottom line, we can speculate until we’re blue in the face, but it makes no difference. All we can do is wait and see what happens.

  8. Billyboy says

    Crowds to descend tomorrow on the Supreme Court building in San Francisco where it is located,NOT the state capital
    California which is Sacramento.

  9. Sargon Bighorn says

    Matt: the state already does that, they sanction secular civil marriage not sacred religious marriage. I don’t understand why people think the state is involved in religious marriage. They are not.

  10. Jeffrey says

    That would “restore a religious meaning to a word that is a religious word,” he said. Kmiec, a Catholic, said he reluctantly voted for Proposition 8 “because of the instructions of my faith community” but felt “entirely unsatisfied” with the outcome.

    Ok. Marriage is not a religious word. The church was not involved in marriages until the 9th century. And Kmiec blindly followed the instructions of his church even though he knew it was wrong. So much for the intelligence of the legal scholars in the conservative camp….

  11. John K. says

    As far as the Court mandating that the state get out of marriage altogether and give domestic partnerships to all, I don’t think the wording of Prop. 8 allows for that. If it said, “Marriages between persons of the same-sex shall not be recognized in the State of California,” then it would be consistent with the canon of interpretation that says courts should harmonize seemingly conflicting provisions where reasonable to hold that since same-sex couples can’t marry under one provision, and since everyone has to be treated equal under another provision (Equal protection clause), then no one can marry.

    However, the wording of Prop. 8 is, “Only a marriage between one man and one woman SHALL be recognized in California” [emphasis added]. Since the Constitution now says opposite-sex marriages SHALL be recognized, I think this would probably be one of those situations where harmonizing the two provisions would not be a reasonable interpretation of Prop. 8.

    Again, don’t get me wrong; I would LOVE to see the Court do that. Wait until those religious nuts, or especially the arrogant centrist who casually made his or her decision to vote “yes” found out that they were no longer entitled to a state-sanctioned “marriage,” but had to settle for DPs instead! OHHH the irony! It would be so great, but very unlikely.

  12. says

    “the state should be entirely out of the “marriage” business and should only be conferring civil equality to all couples, gay or straight.”

    I agree with, SARGON BIGHORN, Matt. It’s the church that should not be involved in civil marriage rights, the only rights we’re fighting for. Civil marriage equality does not infringe on religious rights since churches will remain free to sanction whichever marriages they wish. Churches have no right to own civil marriage. We shouldn’t have to compromise on this. Since CUs were enacted 8 years ago in VT, the majority here has come to understand the distinction between civil and religious marriage (we’ll likely have civil marriage equality in-state via the legislature this year), but the point can’t be emphasized enough.

    The decision, whenever it comes in CA, will be a hugely important one, for better or worse.

  13. busytimmy says

    To capitulate on the term “marriage” and settle for “civil unions” would be unfortunate. Not all religions and religious traditions oppose marriage equality. Additionally, there are many for whom marriage has no religious meaning at all. Time to show the Christo-fascists and religious fundamentalists of all kinds that we have a secular democracy, not a theocracy. Freedom for all.

  14. Trasker says

    Somewhere, sometime, I don’t know who would do it, the legislature..?.. but I think a religious leader should no longer be allowed to sign and therefore validate a California marriage license. No longer deputizing priests seems to be in order if you ask me.

  15. says

    I agree with Trasker, though it would be hard to get through.

    In most of the world, it’s the state that controls civil marriage contracts. People are of course free to have any religious ceremony they want, but that should have no bearing on a legal contract. I think the US is an outlier on this weird mix of allowing religious people to officially sign state contracts.

  16. Mike says

    I believe the court will rule unanimously that Prop 8 is invalid because it violates article 1, section 1 – the majority cannot vote to remove rights from a minority. I say unanimously because I believe the full court will accept the previous ruling as settled law. They will not be intimidated by threats of removal from office. Supreme Court Justices take their job extremely seriously. Mark my words… 😉

  17. John K. says

    If the Court throws it out, it is the end of this issue. It would take years for the haters to get enough votes in the legislature to get the 2/3 they would need to put a revision on the ballot. The only fight left if it is overturned is the fight to defend the Justices in their retention elections or against recall. But make no mistake, if Prop. 8 is overturned tomorrow, marriage equality is in California to stay.

  18. John K. says

    Mike: I can only hope you are right. It is interesting to see if the minority justices honor the precedent. All these articles say how difficult it is for Prop. 8 opponents to win this because all the other side has to do is switch one vote from the majority. Well, yes, but all we have to do is get one vote from the minority, maybe Justice Chin, who might not want to open the door to other protected classes having their rights voted on (Asians have been treated HORRIBLY in California over the years). It’s important to remember that this is a whole new issue than the first case. We could see a whole different alignment of Justices.

    I’m still bracing for the worst. I really have little faith left in all of this, but I keep a small glimmer of hope alive.

  19. John K. says

    When I said “minority justices,” I meant justices who were in the minority in the Marriage Cases, not racial minorities (might have been confusing since I went on to talk about Justice Chin not wanting to open the door to other minority rights being taken away).

  20. Mike says

    This is so open and shut I’m amazed at all the rhetoric being thrown around that we are going to lose on this – however keeping in mind how the press was spinning Sarah Palin as the second coming – I’m not surprised. This isn’t about marriage anymore. It is about whether or not it is possible for the majority to vote away rights of a minority. If that were to be allowed it would throw us into electoral anarchy where rights were being put at risk during every election cycle. Ain’t going to happen folks. And again, as far as the threat of being recalled – these justices aren’t going to let that sway their view. They will do the right thing.

  21. John K. says

    Mike: Arguments did not seem to go well. There’s still a chance, but small. We lost Justice Kennard for sure. That means we need to make her up with one of the minority justices. Baxter and Corrigan actually seemed fairly receptive, but certainly not convincingly with us. Chief Justice George also seemed to be leaving us, though not as much as Kennard. We need two out of George, Baxter, and Corrigan to win. We’ve got Moreno and Werdegar.

    And can I just say though that the existing marriages will remain intact. None of the justices seemed to be leaning toward invalidating them. So, that’s decent, though I was never too worried about that.

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