California | Gay Marriage | News | Proposition 8

Proposition 8 Argued Before California Supreme Court


Well I'm no legal scholar but it didn't look good to me, folks. I hope I'm wrong. Looks like we've got a long row to hoe. The court has 90 days to rule.

Didn't look good to the Mercury News either.

Two quick impressions, just from watching the proceedings, were that Justice Joyce Kennard, who was in the majority 4-3 ruling for the legalization of same-sex marriage last May and was the only justice in that majority to vote against hearing the challenges to Proposition 8 seemed to take an immediately aggressive position toward those challenging the measure. And Kenneth Starr, who immediately followed a rather bumbling and hesitant performance by Christopher Krueger, senior assistant attorney general under Attorney General Jerry Brown, displayed an almost arrogant ease in the courtroom that was only magnified by Krueger's fits and starts. I should add that I thought Shannon Minter and Therese Stewart both did very good jobs in arguing the case.

The L.A. Times reports: "[Chief Justice Ronald] George seemed to signal that the justices' hands may be tied in invalidating ballot initiatives that amend the constitution, as Proposition 8 did. 'That is the system we have to live with until and unless it is changed,' the chief justice told the initiative opponents."

Here's the paper's summation: "During a three-hour televised hearing in San Francisco, only two of the court's seven justices indicated a possible readiness to overturn the initiative. Chief Justice Ronald M. George noted that the court was following a different Constitution when it approved gay marriage last May. 'Today we have a different state Constitution,' he said. Justice Joyce L. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to Proposition 8 but said she would hear arguments over the validity of existing same-sex marriages. Kennard said during the hearing that 'Prop. 8 did not take away the whole bundle of rights that this court articulated in the marriage case.' She said that 'a very important holding' – giving sexual orientation the same constitutional status as race or gender – was not changed. 'Is it still your view that the sky has fallen and gays and lesbians are left with nothing?' she asked gay rights lawyers? Kennard told them they also had the right to return to voters with their own initiative.

KennardSF Chronicle: "Justice Joyce Kennard...said at one point that opponents of the measure would have the court choose between 'two rights ... the inalienable right to marry and the right of the people to change the constitution as they see fit. And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people.'"

L.A. Times: "An interaction between Chief Justice Ronald George and Kenneth Starr, who is defending Proposition 8, gets to the heart of the argument. Starr argues that voters have an inalienable right to amend the state constitution as they see fit through simple majority vote, including 'things that tug at the equality principle.' But George leans in on the question and asks whether, if Proposition 8 had specifically said that homosexuals had no right to form a family relationship or raise children, that still could be done by amendment? Starr replies yes. George pursues it further, asking if California voters could remove the right to free speech? Starr says yes."

What were your thoughts? Impressions?

UPDATE: Good As You has audio archives of the arguments up. There's a video archive here.

If anyone locates an embeddable video archive, let me know at tips - at - and I'll post it up.

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  1. You're correct. It doesn't look good.

    Joyce Kennard is a cunt!

    Posted by: Tralfaz | Mar 5, 2009 4:21:34 PM

  2. did not look good from what i saw. sounds like california law clearly allows the people to amend the constitution and justices are not going to go against that right. maybe they will suprise us, but looks like another amendment to the constitution will be on the ballot in the near future.

    Posted by: phagler | Mar 5, 2009 4:27:30 PM

  3. We're f**ked. Time to move to Canada where I can be treated like a REAL CITIZEN.

    Posted by: JSH | Mar 5, 2009 4:28:25 PM

  4. Sadly it feels as if the justices will err on the side of caution with regards to overturning Proposition 8 -- allowing the will of the people to prevail even if it means removing the previously constitutionally protected right of same-sex couples to marry. Though I did get the distinct impression that they will not retroactively eliminate those marriages already performed under that previously constitutionally protected right to marry.

    That said, doesn't there seem to be a awfully obvious disconnect if they do just that? It will be a constitutionally protected right to marry for the 18,000+ couples who have married previously, but for all of you going forward it will be disallowed thanks to your amended constitution.

    As well, while we had one bumbling attorney (from the Attorney General's office) represent us we also had some very impressive proponents in Shannon Minter and Therese Stewart -- both of whom when allowed to speak made very cogent arguments in my opinion.

    Posted by: robertmalcolm | Mar 5, 2009 4:31:08 PM

  5. What if Propostion 8 had asked to cut off Ken Starr's balls and hang them from a hoop through his nose? Should they do that too?

    Posted by: rayrayj | Mar 5, 2009 4:31:21 PM

  6. I am really hoping that Justice Kennard was just fleshing out all possible questions the right wing bitches who passed this proposition would ask...and that she will continue to vote for our equality.

    Did she say that she voted for Prop 8? I was confused by that.

    Posted by: Josh | Mar 5, 2009 4:31:39 PM

  7. To John in CA from the other thread:
    What's the controlling principle then--what does make a "democracy"?

    BTW, with the caveat that I'm not informed enough to know whether Chavez's elections were free and fair, I agree with your second paragraph. I never said democracy always produces just or wise results. Sometimes it results in organizations that promote terrorism becoming legitimate governments, and sometimes it results in oppression in California. That doesn't make it undemocratic.

    Posted by: Patrick | Mar 5, 2009 4:31:44 PM

  8. Just think of all the things we put on the ballot (with enough signatures) to screw with the haters. Like - no straight divorces, for instance.

    Posted by: HuH? | Mar 5, 2009 4:31:47 PM

  9. We're gonna lose. The question that should have been asked is, "Do the people have the right to take away rights given to other minorities simply because a scant majority so deem it? This injustice will have to be decided at the Federal level and Barrack O, could lead the way, but won't. I simple don't know what the answer is. I was married in MA last year, but my state of PA won't recognize it. That's a constitutional issue right there.

    Posted by: John Simpson | Mar 5, 2009 4:33:47 PM

  10. Fuck Canada! First, we should riot, and not in our own backyards. Everyone should head to the conservative districts in their cities and just torch shit. Then we should recall Kennard and whoever else votes against our rights. I'm tired of being all nice and shit. If Prop 8 is upheld, I hope shit hits the fan and all hell breaks loose. Honestly, even if it sets back public opinion of us, it's worth it. I'm tired of having to pander to public opinions. People think we're weak. Why not prove that stereotype wrong?

    Posted by: Jon B | Mar 5, 2009 4:35:33 PM

  11. Starr was amazing, he firmly held my attention the whole time. I don't like his veiws at all, but I now respect his skills. So since Cal is F'ed I say: COME TO BOSTON EVERYONE!!

    Club Cafe might suck but you can help us build something better! + we won't take your pot! Just prepare to wear a lot of black...

    Posted by: Jeff | Mar 5, 2009 4:37:17 PM

  12. This whole mess has gotten way too technical; court's power vs. people's power. Maroko put it best, "if i don't have to apply a law to myself, i don't have to worry about the consequences." -- that is the argument!!!

    Posted by: Justin | Mar 5, 2009 4:37:50 PM

  13. Well - it is not over yet - they still need to discuss this amongst themselves. And...maybe they were playing "devil's advocate" to make sure all of the thoughts were out there prior to making a decision.

    Posted by: HuH? | Mar 5, 2009 4:40:22 PM

  14. Yeah Jon that's it. Stupid fucking idea.

    Posted by: Tralfaz | Mar 5, 2009 4:40:36 PM

  15. What frustrates me most is that during all this discussion and rhetoric no one seemed to look at us as living, breathing human beings. We just seemed to be some commodity up for sale to the highest bidders like cows at a slaughter'! This is our life folks! We are not a commodity whose fate will be decided by the majority rule! Where was that equation when our fate and future was being decided? No where that I could see!!!!

    Posted by: philberto | Mar 5, 2009 4:42:12 PM

  16. Jeffy, I'm so glad Kenny Starr gave you a hard on!

    Posted by: Tralfaz | Mar 5, 2009 4:42:39 PM

  17. I'm with John B. If we get fucked we need to go out a FUCK SHIT UP! I am SICK of relying on incompetent boobs to represent us and sick of the 'let's play nice' fucks out there. Jumping up and down and wining gets us nowhere.

    Posted by: Mr. E | Mar 5, 2009 4:43:07 PM

  18. @ JON B - as a Canadian, I say hell yeah! Fuck shit up and show people we're fucking sick and tired of being thought of a sissies and pansies who don't have the strength in our limp wrists to throw a good punch. Fuck 'em all!

    Posted by: D.R.H. | Mar 5, 2009 4:43:37 PM

  19. What frustrates me most is that during all this discussion and rhetoric no one seemed to look at us as living, breathing human beings. We just seemed to be some commodity up for sale to the highest bidders like cows at a slaughter'! This is our life folks! We are not a commodity whose fate will be decided by the majority rule! Where was that equation when our fate and future was being decided? No where that I could see!!!!

    Posted by: philberto | Mar 5, 2009 4:43:38 PM

  20. So much for 'activist judges'. Starr may be a clever lawyer but he is as ugly on the inside as out.

    I like the idea of a ballot to make divorce against the law, let's see them all shit.

    Posted by: patrick nyc | Mar 5, 2009 4:43:56 PM

  21. i agree with jon b

    i'm tired of playing nice

    Posted by: reddevilboy | Mar 5, 2009 4:44:44 PM

  22. HuH?, I hope you are right!!!!!!

    Posted by: Justin | Mar 5, 2009 4:45:47 PM

  23. I personally don't want the right to marry given to me by the court. Living in California I've had to put up with the '"Activist Judges" gave the gays the right to marry' bullcrap. I belive in a year or two we will be given the right by the "Will of the People" via another ballot initiative and it will not give the conservatives their biggest ammunition.

    Posted by: KenInCali | Mar 5, 2009 4:45:48 PM

  24. After watching today's arguments and trying to analyze what took place as objectively as possible, I'm not so sure it is a lost cause for overturning prop. 8; even with Kruger's bungling, rambling ineptitude. (Thanks for nothing Jerry!!)

    It boils down to the "inalienable rights" of those who cast their ballot to change the state’s constitution versus the "inalienable rights" of a suspect class. And I hope the justices will look at their decisions through that prism and use prior cases involving suspect classes as his/her guide.

    At least the question regarding the 18,000 existing marriages is clear. The justices will rule that prop. 8 can NOT be retroactivity applied and they will remain intact.

    Posted by: Mark (another one) | Mar 5, 2009 4:48:18 PM

  25. Our fates WILL be decided by majority rule. The sooner we understand that, the sooner we can get serious about winning some elections.

    Posted by: Patrick | Mar 5, 2009 4:51:31 PM

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