Proposition 8 Argued Before California Supreme Court

Starr

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 – towleroad.com and I'll post it up.

Comments

  1. phagler says

    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.

  2. robertmalcolm says

    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.

  3. Josh says

    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.

  4. Patrick says

    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.

  5. HuH? says

    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.

  6. says

    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.

  7. Jon B says

    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?

  8. Jeff says

    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…

  9. Justin says

    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!!!

  10. HuH? says

    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.

  11. philberto says

    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!!!!

  12. Mr. E says

    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.

  13. D.R.H. says

    @ 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!

  14. philberto says

    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!!!!

  15. patrick nyc says

    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.

  16. KenInCali says

    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.

  17. Mark (another one) says

    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.

  18. Tralfaz says

    If we lose this …. I don’t think another ballot measure in two years is a good idea.

    I’m against the idea of “burning shit down” … what the fuck good does that do?

    Yeah, I’m pissed and I’m tired of being Mr Nice Gay … burn down someones home? Business? What fucking good does that shit do?

    What I AM for is developing giant flying cows with the shits that fly over homes and business of Prop 8 supporters and have their terlits back up and let them live in they own shit!!

    Fuckers!

  19. JE says

    I’m a lawyer. It looked real bad to me. I think the pro-equality side with get only 2 votes, Moreno (of course) and Werdergard. I think it’ll be 7-0 to keep the old marriages, though. It was super-insulting how George and Kennard kept talking about how much we got out of last year’s ruling and how Prop 8 only removes one piece of it. No biggie, just the one piece that brought everyone there in the first place.

  20. Sebastian says

    You know it isn’t good when you see Ken Starr in the picture, another sad day in the battle.

    And, the same “justices” that were for it are now all of a suddena gaisnt it? Seems like it was all a political ploy to grant it in the first place, not justice and equality.

  21. Tralfaz says

    Mark (another one) – I think the only thing good that might come out of this is the 18k marrigages will not be voided.

    But to me (legally married gay feller here) it’s a hollow victory. My marriage will still not complete if 8 stands.

  22. HuH? says

    Patrick is right – we need to get more gays, lesbians, transgendered out there, politically and personally. The more we become part of society the easier it will be to be completely accepted. We do need to try to change some of the right wing ignorant minds. Of course, some will always be full of hate – but not everyone!!!

    Imagine: Divorce becomes illegal.

  23. Jeffrey says

    Do you guys understand that if we draft a ballot initiative to reverse prop 8 it will have to pass by a 2/3rds vote and not just a simple majority? That will take a very long time, if ever, to reach. We are basically f*cked.
    Having watched the entire case, I am pretty sure that they will rule to let prop 8 stand but will not invalidate the marriages that already took place. It’s absurd.
    The only consolation I can think of is that if they allow my marriage to stand, it will make Ken Starr and his cabal blow steam out their ears.

  24. Eric says

    Yikes, Tralfaz! While I didn’t appreciate her aggressive questioning tactics and what appears to be a very limited attention span to what anyone else has to say, I certainly didn’t think she (Justice Kennard) was a cunt.

    What I zeroed in on near the end was the persistent talk of suspect class. In review however, by definition, it would seem the court would be only marginally obligated to respond by means of rational basis. The most unfortunate part of this entire “hearing” was that the arguments which mean so much to us are disproportionately hindered by the due process of law and bound by semantics. Unfair is unfair, discrimination is discrimination, and wrong should simply be a matter of being wrong…and WE are all perfectly aware of what those things ARE, but this act was created by a tyranny of a majority, a rather inept, ruthless, superstitious, and ignorant majority which, by definition FEDERALLY, is well, not so clearly discussed after all. At the state level, apparently the malleable nature of the California constitution leaves tyranny by a majority perfectly acceptable.

    My question is, however, where does it say anywhere in the U.S. Constitution that tyranny of the majority is unacceptable? I’m still pilfering through the Bill of Rights and all of its amendments and I don’t know exactly where to look.

  25. Javier says

    The point is that we must convince the majority of voters to support same-sex marriage. We can complain that this should not be so, the reality is that it is. Thus, we need to galvanize, strategize, organize, donate, argue, convince, convert, and publicize like never before starting now. We need to get out of the delusion that the courts will save the day. Only the majority vote will.

  26. Alan says

    Wouldn’t it be a disaster for us longer term if the Court overturned a change to the state constitution that had been approved by the majority of voters?

    Without the support of at least a majority of the voters, we have nothing long-term. A courtroom alone is insufficient to guarantee our rights. We’ve grown so lazy about securing our rights we don;t even know how to convince 50% of our neighbors to support us.

  27. Tralfaz says

    Oh no Eric. She a cunt. I seen it.

    Not pretty.

    Are you familiar with Margaret Cho’s work? You remember Gwen?

    I AM Gwen!

    So I know a bad cunt when I sees it.

    Not pretty I said.

    Not pretty at ALL!

  28. gayalltheway says

    Well, we now have 90 days to wait for the ruling. If they ruled that Prop 8 is unconstitutional, then we celebrate and party (the way we know best) and if they ruled that Prop 8 should stand, then we’ll give them hell..especially to those religious nuts who donated to the campaign and voted against our rights. If they so fervently and strongly believe in the idea of heaven and hell, maybe we ought to show them what hell looks like. They haven’t seen anything yet. I think Kruger is a two-faced fucktard, a snitch planted on our side to sabotage the whole damn thing. I am fucking angry right now!

  29. ctsf says

    What I don’t get is that if the the Prop 8 vote was for Californians, by Californians, why was one dime of out of state money allowed to fund either side. We all know which side benefitted the most from those dollars and where they came from. That alone should invalidate the passage and set it up for at least a new vote. Painful to consider, but only speaking within the framework they’re establishing. It is still a violation of civil rights passing either way.

  30. Patrick says

    Eric, the U.S. Constitution does not say that tyranny of the majority is unacceptable. It guarantees all citizens equal protection of the law and due process of law, and the courts have interpreted what those phrases mean. However, there is not a single word in the federal constitution or any state constitution that cannot be changed. The majority is not tyrannical because, so far, they have generally chosen not to be. But don’t imagine that they couldn’t change their minds.

  31. Dan says

    “Do you guys understand that if we draft a ballot initiative to reverse prop 8 it will have to pass by a 2/3rds vote and not just a simple majority? That will take a very long time, if ever, to reach. We are basically f*cked.”

    Is this the case? A future proposition needs to have a higher standard to invalidate the former?

  32. Tralfaz says

    Alan – So what if the majority of the voters voted to change the constitution to throw us in fucking jail?

    I guess by YOUR thinking that would be just be A-Ok.

  33. Paul R says

    Given Jerry Brown’s flip-flopping on this issue, I’m not remotely surprised that he sent someone who did an ineffective job. If Brown really cared, he would have gone himself—but that would have been too bold, politically. This approach allows him to effectively straddle the issue, and is among the reasons I would never vote for him for governor or anything else.

  34. Will says

    Starr’s position boils down to the Fed. Con. is the bottom and the CA Con. can give/protect more rights but only if the majority says ok. I din’t follow the oral arguments today (too tedious IMHO), but I’ll be curious to see what the Ct. says about an amendment vs. revision in their decision.

  35. Mormon rights says

    If Prop 8 is allowed to stand, it means that it would also be constitutional to pass an amendment that requires the taxation of the Mormon Church.

  36. Ted says

    I agree with the other Mark, where the hell was Jerry Brown? The media have called this the most important case the CA Supreme Court has ever decided, and we all know CA sets the tone in many ways for the rest of the nation, and Jerry delegates the job? I’m not a lawyer but I dont understand why he didn’t address the court?

  37. Patrick says

    Guys, I’m about to leave work to go home to my partner of 12 years in a state that certainly will not allow marriage and probably not civil unions in my lifetime, unless it comes from the federal level. I hate to leave this conversation because it’s one we need to have. You can’t play the game if you don’t understand the rules.

    Alan wasn’t saying it’s OK for the majority to throw us in jail, but please understand that ultimately, if they really, really wanted to, they could. Not that I think that’s going to happen, but it could. Every single victory ever won in a court in a case that turns on constitutional interpretation can be undone by amending the constitution. Brown v. Board, Miranda, Griswold v. Conn, Roe, Bowers v. Hardwick–every single one of them could have been undone by amending the constitution. We have to get to the place where a majority doesn’t want to amend the constitution to keep us from marrying.

  38. says

    It doesn’t look good, but the questions posed during oral arguments can be as much about convincing other the judges as the judge’s own position (i.e. probing on issues that they know other judges have expressed concerns about.)

    BTW, it’s worth nothing that the first attorney up was Shannon Minter, who was the lead attorney in the original winning case, and is a trans man. (Just for the folks who insist us T folks have nothing to do with the LGBs….)

  39. entspeak says

    The flaw in Kennard’s reasoning or, unfortunately, in the challenger’s arguments was that the right of the people to alter the constitution would not be restricted willy nilly. Kenneth Starr did a brilliant job talking about the sovereignty of the people and the jurisprudence. Everybody acknowledged that this was a unique situation that had not come before the court before. All the jurisprudence showed in my opinion is that Article XVIII, Sec. 3 is NOT a blank check for a bare majority to do as it pleases whether wisely or no.

    He kept dismissing the “suspect class” issue and spoke of general rights. But the fact that this deals with a “suspect class” is the main point. The Equal Protection Clause is intended to protect suspect classes from the will of the majority. A ruling that allows Prop 8 to stand recognizes that the California State Constitution’s Equal Protection Clause does not apply to a bare majority of Californians. If a bare majority wishes to strip the rights of a suspect class they need only pass an initiative amendment – the requirements for which are not much different than if they were to pass an initiative statute.

    The alteration such that the Equal Protection Clause no longer applies to a bare majority of the population wishing to strip a suspect class of fundamental rights is a HUGE change in the basic structure of government.

  40. ScottJ says

    “Bumbling” and “hesitant”, those are understatements describing Kreuger’s arguments. . . once again the face of our cause is weak and ineffective.

    What is wrong with us as a community that we continue to accept the mediocrity of our “so called” leaders?

  41. Todd says

    The reason the court is discussing death penalty and murderers isn’t to equate gays with killers, it is because the petitioners’ (the gay couples) brief raises the case and distinguishes it.

    I think the crux of the issue goes to something the chief justice brought out in his questioning of Starr: 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. But CJ George 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.

    That is an obviously very dangerous slippery slope — whose rights are to be put to the vote next? What if CA voters decide red-heads shouldn’t marry?

  42. John in CA says

    Patrick,

    It depends on what kind of “democracy” you’re refering to.

    Obviously, the controlling principle for the California Supreme Court is majoritarianism. And they might even be right in the context of this particular state’s history. What I’m suggesting is that the California model itself isn’t particularly good. This is, of course, a much broader question than what’s being considered by the court. And I raise it only insofar as I believe the system desperately needs to be reformed.

    Even more troubling to me than the apparent right of Californians to take away civil liberties at will, is their apparent right to mandate spending without finding a source to fund it. Part of the problem with neverending California’s budget crisis is the people spend, spend, spend… and then hand the bill over to the Legislature to “solve it.”

    In this country, referendums were originally a “fad” that swept through the Western states at the end of the 19th century (through the Progressive Movement). Before that shift, the notion of holding a popular vote on anything was generally dismissed as Athenian “rabble rousing” nonsense. And America thought of itself as a spiritual successor to the Roman Republic, where “checks and balances” between various stakeholders in society are the controlling principles (not majority rules).

    The older model remains the controlling principle throughout much of New England (except the State of Maine), the Mid-Atlantic, and Midwest, where voter initiated constitutional amendments require legislative approval. Even within the rubric of liberal democracy, I’m of the opinion that having such a firewall is both appropriate and sensible. Although it is certainly no guarantee of a just or wise outcome either, it is better than what we have here.

    Outside of liberal democracy, you have other models are well, including democratic socialism (Chomsky), deliberative democracy (Rawls), rational-consensus democracy (Habermas), and so forth. Entire dissertations have been written on what democracy actually entails. So, to simply say “we had an election” means very little

    Re Venezuela: Monitors from the European Union and Jimmy Carter’s NGO were invited to Venezuela to scrutinize the referendum process up close. Although Carter noted that the opposition did not have equal access to the media, the former president conceded that the elections giving Chavez expanded powers were “generally” free and fair. Chavez would, of course, argue that the United States itself does not abide by the practice of “equal time” for both sides of a given debate. And he’d be right. That doesn’t mean he isn’t a “dictator” (requires more study). It just means he’s right about being elected.

  43. nikko says

    No, JAVIER, that should have been done already by gays, that is, convincing the majority about the importance of gay marriage. I don’t think deep down I really believe in it, and maybe many gays feel that way too. I’m all for choice, but the gay rights movement in my opinion, has gone the wrong way in pursuing gay marriage. We still are seen as sinful and defective by the majority of the world. That alone is a huge
    burden to overcome, then our civil rights. But gay “marriage”? Now? Gosh, I bet it would have been better if we had stuck to civil unions for awhile, and then pursue marriage rights when society would see the benefits of gays coupled up. Neither they or I am fully convinced that gay marriage is at the core of our fght.

  44. Patrick says

    John in CA, if you’re primarily arguing against California’s referendum system, sign me up. I think the people should, and in most places in our country do, recognize that referendum is too subject to passion and whim and leads to bad, unfair government. The point I’ve been making is that ultimately the authority of government, including on questions of individual and minority rights, is derived from the consent of the governed. The majority will have its way; hopefully that way is to embrace freedom and equal protection.

  45. says

    I think we can close doubts on the “retro-activity question.”

    Moving forward, even Starr seemed to admit that the California Amendment procedure is flawed. Well, fine. On one hand, that opens the door to Federal Appeals, I believe. On the other hand, it lays the groundwork for the process to be changed to a two-thirds popular majority, which will make future propositions exceptionally harder to pass.

    In the end, I think there is a large group of lawyers racing to form an anti-8 amendment on one side, and a Constitutional Procedure amendment to make that Anti-8 even more difficult to pass, on the other.

    Hopefully, the Anti-8 battery of lawyers has the resources to mount an Appeal AND another Amendment proposition, as I think the Court is going to let it stand.

  46. duane says

    We homos are Full Equality loving for all humanity!!! Then there are the selfish self-serving straight people. My marriage of loving committment is not for you to judge.

  47. says

    “I’m all for choice, but the gay rights movement in my opinion, has gone the wrong way in pursuing gay marriage.”

    First of all, we’re not fighting for “gay marriage.” We’re fighting for CIVIL MARRIAGE EQUALITY, nothing more, nothing less. How could wanting equal rights be “the wrong way?” Good grief. The majority in CA may have voted to take away our rights, but attitudes like this from gay people boggle my mind. Do you think you deserve the same rights as straight people or don’t you?

    I agree with you that we must work to educate the ignorant majority, but we don’t do that by backing down and questioning our own worth. Education can happen. On the very day we seem to be going down to defeat in the CA Supreme Court, the VT legislature has vowed to pass a bill this year granting gay couples full marriage equality within the state instead of CUs. We’ve made this progress in 8 years. It will be harder to achieve in other states, particularly those with heinous ballot initiatives, but as the leader of our effective Freedom to Marry organization said today, The trajectory is in our favor, and we are on the right side of history.

  48. peterparker says

    For the person (people) who keeps posting that we will need a 2/3 majority vote on any ballot initiative to undo Prop 8, you are wrong. In California, our constitution can be amended by a bare majority (50% + 1 more vote). Therefore, we can amend it again to allow marriage equality with a simple majority in our favor.

    Our side is currently arguing that Prop 8 changed the CA Constitution so drastically that it is a revision disguised as an amendment. A revision requires a 2/3 vote of the people AFTER it has been passed by the legislature.

    If the Supremes allow Prop 8 to stand they will be saying that it was an amendment that required only a simple majority vote, thus it can be undone by another amendment.

  49. Jeffrey says

    The law in California states that in order to reverse a constitutional amendment that has been decided by a ballot intitiative, the new ballot intitiative has to pass by a 2/3rds vote. I am not making this up. People seem to think we can just get it on the ballot in the next election and we will get it fixed. We are no where near getting 2/3rds of the electorate on our side and no warm and fuzzy “outreach” is gonna get us there anytime soon. Our only hope is for the federal govt. to give us full marriage rights, whether they are called “marriage” or civil unions. That is what we should be aiming for.

  50. John in CA says

    “Consent” can be passive though. In fact, it generally is at the federal level.

    A political culture that exalts referendums implies that there must always be active approval. That’s part of the problem here. We’re dumbed down politics in California to the point where everyone believes they have the inherent authority to decide on matters they have absolutely no competence over or acumen with.

    That Californians actually believe they can handle a 150 billion dollar budget process better than Schwarzenegger, the Legislature, and a room full of PhDs in Economics isn’t cause for mass celebration or tributes to the “triumph of the people.” It is a testement to the people’s vanity. And it is a sure sign the system is horribly broken.

  51. Bob says

    Dan is wrong. To REVISE the constitution to guarantee marriage equality, we’d need the higher standard. We can overturn Prop 8 with another ballot initiative of our own. A mere 50% plus 1 is enough to do so.

  52. Bill says

    No one shoud be surprised that a HATEROSEXUAL (Christopher Krueger) screwed up our chances. A HATEROSEXUAL male torpedoed our chances during Prop 8, campaign manager Chris Smith. Every study conducted on anti-gay bigotry has show that HATEROSEXUAL males are at least moderately anti-gay. No idea is more HATEROSEXUAL than the idea of power imbalance i.e. someone has got to be on top and someone has got to be on bottom, someone has to lead and someone has to follow. HATEROSEXUALITY and equality don’t mix. HATEROSEXUALS are troublemakers and the reason misogny, racism, anti-gay bigotry, anti-disability and any constructed form of bigotry exist.

  53. Mike says

    Our rights will not be decided by majority rule. While it is true that in California, we may take the path of approaching each election with a new measure to again amend the constitution, but our true rights are fated to be decided at the Federal level, thereby protecting us across the land.

    Having said that, I want these ballot measures on every state ballot in the country if to do nothing else but empty the coffers of the various social conservative organizations and those churches who would spend so much money to oppress us through their religious tyranny. Focus of the family just laid of 1/3 of their employees…that was good news to my ears. Let’s keep these measures coming until some of the religious leaders have to sacrifice their gold plated bathroom fixtures and private jets.

  54. Marc says

    The new and Improved Pervert Bill of Rights

    Amendment I: Congress shall make no law respecting Fags, Lezzies or He/Shes which might prohibit the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the Heterosexuals to peaceably assemble, and to petition the Government for a redress of grievances.

    Amendment II: A well regulated Militia, being necessary to the security of a free State for normal people, the right of the people to keep and bear Arms, shall not be infringed and shall not include perverts.

    Amendment III: No Soldier shall, in time of peace be quartered in any house with a pervert, with or without the consent of the Owner, nor in time of war, AT ALL.

    Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be extended to perverts, however Warrants shall issue upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized for their perversions.

    Amendment V: No person shall be held to answer for any capital, or otherwise infamous crime against perverts, even on a presentment or indictment of a Grand Jury, inclusive of cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any normal person be subject for any offence against perverts to be put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against anyone who harms, maims or kills perverts, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Amendment VI: Perverts are not entitled to ANY competent legal representation though adequate measures must be maintained to make impartiality and justice look believable.

    Amendment VII: Perverts are allowed to congregate in bars, establishments which cater to sexually abnormal acts and closets in order that they might hasten their own death through substance abuse and disease.

    Amendment VIII: Perverts may in an attempt to prolong their lives, submit to psychological testing and corrective procedures.

  55. Sargon Bighorn says

    With all due respect, love, and smooches to the Gay Americans in CA, you folks are not the center of the universe and other Gay Americans are fighting and winning the right to have a marriage. Watch for Iowa and Washington. I know I know it hurts honey. Come here and place that tear streaked face between my AMPLE breasts and let me hug you close. Feel better? Yes I knew you would.

    Keep fighting for equality. If they say a D.P. is the EXACT same thing as a CA Marriage, then honey FORCE THE ISSUE. Pace the inside of that cage and find a way out. It takes time and work. NOW you all know the hard work and money it takes to Lose a fight. Don’t stop fighting.

  56. Yeek says

    We’ve lost the case, and more importantly we’ve lost the inertia. Another ballot in two or four or six years will have the added burden of asking people to choose change, rather than just going along with the law as it stands. That’s a much harder fight.

    After the ruling upholding Prop 8, there will be a few protests and maybe someone will be butch enough to burn a few cars. But let’s face it, we’re just not tough enough to really scare anyone. We’re just not. We’re about as good at having a riot as we are against winning fistfights against gay bashers. It doesn’t happen very often. I’ll take it all back if I see it happen.

    The only we’ll get marriage rights is through pity and friendship and the deaths of the older generation, as nauseatingly passive as it sounds. Many years.

  57. Mr B says

    “George pursues it further, asking if California voters could remove the right to free speech? Starr says yes.”

    Well that’s moronic. California voters could remove their FEDERAL rights to free speech by amending a STATE constitution?

  58. Mike says

    Well, I eat my words from yesterday. Looks like we are going to lose :-(

    I don’t fault the Supremes, I think they will do what they believe to be the correct thing within the confines of the constitution; e.g. they believe their hands are tied. That unfortunately is very sad for minority rights – but it is what it is… I hope I’m wrong, but from the arguments doesn’t look very good at all.

    Realistically speaking, it is doubtful that any initiative to remove additional rights would pass by the electorate – we’re all collectively very stupid apparently for Prop 8 to have passed, but I don’t think we would be so lame to blatantly remove other rights. Remember, gays are the last minority who it is still somewhat socially acceptable to bash.

    I think we need to get the new initiative on the ballot and for god sakes, don’t repeat the same lame campaign which caused us to lose this in the first place…

  59. Joe says

    KENINCALI – I completely agree. If the court overturns a validly-passed constitutional amendment, it would set us back years. The right wing crazies would raise billions of dollars in “fear money” for their cause. We must win hearts and minds folks, not oppose hearts and minds.

  60. peterparker says

    @ SARGON BIGHORN: We Californians don’t think we are the center of the universe and are well aware that marriage equality battles are waging on a number of fronts. However, our battle here has commanded more attention than most other states for two reasons: 1) California is often a bellwether for other states and 2) Proposition 8 was the first time marriage rights had ever been taken away from homosexuals (as opposed to states that have blocked our access to marriage proactively).

    @ YEEK: If you don’t think queer folk will riot, I encourage you to watch the documentary ‘The Times Of Harvey Milk’. At the end of the film there is archival footage of riots that took place in San Francisco following Dan White’s light sentencing for the murders of Milk and Mayor Moscone. The area around City Hall looked like a war zone. Faggots will fight, and I for one hope there are riots in the streets of every major city in this country if the CA Supreme Court upholds Prop 8.

  61. Sargon Bighorn says

    PeterParker, maybe CA is not the Bell weather you would like to think you are? Might be time to come close to my AMPLE breasts so I can hug you close and help you through these tough times? Come here you little cute thyang you.

  62. pete says

    It’s a tough call… I think the judges were concerned w/ contract law b/c 8 oversteps (invalidating regardless of when or where performed) & they seemed to leave the window open for a tweaked interpretation of “amendment vs. revision.” Ultimately, rights shouldn’t be taken by ballot, but that’s not what they get to rule on. I think the judges are as frustrated as the NO on 8 people.

  63. says

    “The only we’ll get marriage rights is through pity and friendship and the deaths of the older generation, as nauseatingly passive as it sounds. Many years.”

    I’m sorry, Yeek, but that does sound nauseatingly passive. Sometimes we need to bitch slap each other out of this futilely pessimistic stupor. It looks like this will be a setback–a discouraging one, obviously–but I think you underestimate us. We need to keep making our argument well, forcefully, and actively. We need to be politically and strategically smarter. Pity is the very last thing we need, whether it’s self-pity or the pity of straight people. I agree with both SARGON BIGHORN and PETERPARKER. Prop 8 sets a horrible precedent that affects more than just CA. But, it’s true: CA is not the only place where equality matters, and in the northeast we’re actually making great strides. The tide is shifting in our favor, and it will shift a lot faster if we fight smart and hard for what we deserve.

  64. says

    I totally agree with the Mercury News summation. Kennard was “aggressive position toward those challenging the measure” and I think she gave Ken Starr a pass. Kennard did most of the talking in the time alloted for the challengers. I suspect we know how she will vote.

    Starr was fluent, which I didn’t find from the pro-marriage attorneys. He had a bit of arrogance, and also his opening praised the California Supreme Court. I think that helped him with the court. It must have been all the practice he had during the Clinton years.

    Overall, I think it will be another election.

    P.S. Although we could probably get enough signatures to put a ban on divorce on the ballot, you know it won’t pass. Maybe a ban on interracial marriage? That is closer to what we are fighting (and you would definitely get the bigots out).

  65. cmh says

    I have been angry about this all day but still in all the good news is these people, maggie gallagher and her ilk, do not have the youth. They do not have those in their 20’s either. Ken Starr maybe skilled but he is over half way to dead. I want our rights yesterday and I am sick to death of this shit but at least time is on our side. These people are going to die. (Hell James Dobson is 70). & I say Good fucking riddance.

  66. cmh says

    I have been angry about this all day but still in all the good news is these people, maggie gallagher and her ilk, do not have the youth. They do not have those in their 20’s either. Ken Starr maybe skilled but he is over half way to dead. I want our rights yesterday and I am sick to death of this shit but at least time is on our side. These people are going to die. (Hell James Dobson is 70). & I say Good fucking riddance.

  67. mIKEM says

    If the justices uphold the 18,000 existing marriages, then doesn’t this set up an interesting argument under the 14th Amendment? the equal protection clause? or are we now back to separate but equal…mover over Dred Scot!

  68. John in CA says

    At this point, I just hope they publish the damn decision upholding Prop. 8 sooner rather than later. They know they’re going to screw us over. We know they’re going to screw us over. Lets get this unpleasant business over with and focus on what’s coming next…

    Namely, fighting for another initiative to repeal Prop. 8 and keeping EBay lady out of the governor’s mansion in mid-term elections.

  69. Paul R says

    Allowing the existing marriages to stand is going to create endless legal wrangling at many levels. It’s all so tiresome.

    Starr overstepped his bounds in saying that CA voters could deny free speech. The chief justice was tyring to reveal Starr’s hypocrisy and, no matter how smarmily well-spoken, is doing us favors. We don’t need for the older generation to die, we just need one or two new appointees to the CA and federal supreme courts.

    And yes, CA is a sign of what will happen elsewhere. It’s the sixth or seventh largest economy in the world—of course it has enormous influence, whether with civil rights, environmental activism, or most anything else (including a Republican governor who is hardly a party favorite).

  70. Harrison says

    OK, so if the ban is upheld, shouldn’t people just start randomly picking groups of people and trying to get laws to not allow them to marry? A lot of times I hear people say (and rightfully so) “if you said that people couldn’t get married, everyone would look at you like you were crazy.” Well… prove it. And then when people sue they could say it’s the will of the people!

  71. So Left I'm Right says

    I mean seriously, what the fuck? Does the argument make ANY sense? So the “will of the people” can take away what was established as an inalienable right? So what happens now? Next election, perhaps the “will of the people” restores the right of gays to marry. Then, what happens if in the next election, something crazy happens like a bunch of religious nutcases throw millions of dollars to run yet another reversal? Can this just go back and forth forever? Can you get marries every couple of years, but not in the off years when political winds blow? FUCKING BULLSHIT!

  72. says

    I agree it doesn’t look good. And I agree that when the decision comes down, the gloves need to come off. But for the love of God, don’t just march in the Castro & WeHo — you all need to bring that anger, that rage, and that passion to the places that provide the backbone for the anti-gay forces in the state of California…the Central San Joaquin Valley. Check out our link, it’s time to take the fight to our enemies backyard!

  73. John in CA says

    Don’t protest in the Castro. Protest in front of the bloody Supreme Court. It is, what, freakin’ ten minutes away from the Castro on the subway?

    I mean, honestly, sometimes I think folks in San Francisco are brain dead. When Kennard was sarcastically going on that rant about how this “isn’t the end of the world” and she hasn’t “seen anything” outside of her office window, that should be a cue.

    Aren’t there over 100,000 gays living in the same city as our dear Justice Kennard and her lovely smirk? Make her see something when the decision to uphold Prop. 8 is handed down. Don’t just hang around the gay neighborhood and pout.

    Jesus Christ. This shouldn’t be rocket science.

  74. Tom K. says

    I agree, John in CA. In the run up to the election, there were always crowds on the corner of Santa Monica and San Vicente here in West Hollywood waving signs and cheering. Every time I drove by, I thought, “What the hell are you doing standing on the street corner in the heart of West Hollywood?”

    Personally, if this decision comes down in favor of Prop 8, I hope there is some severely uncivil disobedience. The idea that we can snuggle our enemies into granting us rights is completely half-witted. They’re not afraid of us, so they continue to crap on us and laugh. Do you think African-Americans would have achieved their civil rights by sitting quietly at the back of the bus and channeling all their efforts through a bunch of lawyers? Black America made it clear that they weren’t going to take it anymore. We need to show these &^%$# the same thing. They need a hundred thousand of us on the doorstep of the CA Supreme Court screaming for blood. That’ll remove some of the legal abstraction from the situation. We need to say to them “You’re stealing rights from millions of us, treating us as second class citizens, and we will tear this place down before we let you do it to us again.” You’ve got to stand up to bullies; you don’t just send your lawyers in to talk to them.

  75. queenzafrona says

    Where can I start the petition to recall Joyce Kennard? I remember when the people did not like the decision on the death penalty and they recalled Chief Justice Rose Bird. Isn’t it time to recall again?

  76. Glenn Rivera says

    This is not the America I read about as a kid – we are still being controlled by the hatred of our kind.

    I don’t care what anyone says or how they say it – they do not like gays and look at us as equals.

    Why do we pay taxes? For this?

  77. rudy says

    As a veteran of many oral arguments (and briefs on appeal) and as someone who has taught legal research, writing and advocacy, I had the following observations:

    The attorneys arguing to overturn Prop 8 seemed uniformly ill prepared and ill at ease. I disagree with you, Andy. I thought they did a barely acceptable job in articulating a coherent position.

    They did not appear to have anticipated many all but inevitable questions.

    Did they not “murder board” these oral presentations?

    E.g., I cringed every time the attorney mispronounced “amici” (friend [of the court]) as “a ME key” with a hard ‘c’. This should not prove decisive, but it evinces sloppy preparation.

    Moreover, those arguing for “our side” missed numerous opportunities to agree with the Justices even when the Justices were making repeated attempts to re-frame the attorney’s arguments in constitutional and precedential terms.

    This violates the first rule of advocacy: Never argue with a judge who is trying to help you. Say “Yes, your honor” and then continue to make your point(s).

    Perhaps most disconcerting to me, the attorneys for the Petitioners failed to actively engage the judges. This court is known to aggressively question, yet our attorneys seemed surprised–if not annoyed–when the judges held true to type.

    I always advise my students to rejoice when a judge asks repeated questions. It shows that she is engaged, has read the briefs, thinks the matter is important, and wants to engage in a fulsome conversation. N.b., Persuade not “debate”. One does not debate the decision maker; one tries to convince her.

    In contrast, Mr. Starr ran the risk of appearing condescending (almost smarmy) because he was so comfortable with his argument AND his role.

    Granted, our attorneys have more emotional and personal investment in the outcome. That, however, suggests that they should have been better prepared.

    It is exceedingly difficult to predict the outcome (I too have significant emotional and financial investments in the outcome) but I suggest that it is ~80% likely that the court will not vote to invalidate the same sex marriages that occurred during the period that proponents of Prop 8 would like to characterize as an “interregnum”. That is, a period of discontinuity in law.

    Conversely, the strongest argument for our side is that Prop 8 was an unconstitutional procedure to invalidate fundamental rights that already existed in the California state Constitution, but were merely enumerated by the Court now hearing the challenge thereto. Hence, it is the passage of Prop 8 that creates an illegal discontinuity and constitutional infirmity by stripping away inalienable rights of a suspect class. Therefore, I think that it is only ~40% likely that the court will invalidate Prop 8. I have re-evaluated my initial predicttion of “too-close-to-call” going into the oral arguments.

    The old saw is that an attorney can only lose at oral arguments but I do not believe that their performances were that bad. More importantly, our side has the far better written briefs (with the notalbe exception of that prepared by the flip-flopping AG). I am slightly hopeful that will suffice.

  78. Kevin says

    1)Kennard is a coward and an ass. If that damned amendment doesn’t rise to the level of a revision, she had no reason to vote for gay marriage last year, as Prop 22 would have been valid. Marriage was the ONLY thing last year’s decision changed about gay people’s rights under the CA constitution. Gays and lesbians didn’t have “nothing” before the decision last year, but they didn’t have equal standing under the law then and now, once again, they don’t have it.
    2)But why the hell aren’t we spending some of our millions in fundraising dollars on slicker lawyers? Like it or not, this sort of shit matters, and we can’t afford to put people who are arguing their first big case against people with hundreds of high-level cases under their belt. It’s cutting off our nose to spite or face.
    3)I still maintain Jerry Bron sandbagged this case by overshooting on the argument that this was not subject to any vote, even at the revision level. He should have known that argument was a loser, and I think he did. He wanted the street cred of figithing for us without any of the blowback he would suffer should he actually WIN for us.
    4) Ok, I’m done venting. We need to do something. I say we put gay marriage on the ballot EVERY DAMN YEAR in EVERY DAMN STATE until it passes. Then watch the fundies heads explode as year after year their lead evaporates, and state after state allows gay marriage.

  79. macguffin54 says

    what i don’t understand is the judges’ inability to make the distinction between upholding the universal “right” for everyone to marry and the “right” for the people to amend their constitution any way they want. by invalidating the constitutional amendment, you are not taking away the right of the people to change their constitution. that right will still exist after this issue is decided, no matter how it is decided. they would only be defining boundaries for those things that can be put into the constitution. maybe i am wrong, but i do not believe “the people” could create an amendment making it legal to murder black people or to allow women to get paid 10% of what men do, no matter what the will of the people calls for, because by doing so, you are eliminating a person’s “rights”. people do not have the “right” to create any law that inherently goes against the fundamental right of human beings, or that directly contradicts other laws.

    in addition, the judges do not seem to be able to make the distinction between universal “rights” (life, marriage, health, etc.) and “opinions”. by upholding marriage equality, the judges would be enforcing the rights of everyone. but by negating marriage equality, they would be enforcing an “opinion” of the people. to be clear, they would not be enforcing the right of people to HAVE that opinion. that right will continue to exist after this decision. but they would be saying, by negating marriage equality, that the specific OPINION of the majority has more weight than an inherent “right” that should be available to all.

    perhaps by making these confusing statements, they are showing on which side their bread is buttered. and they are showing that doing what is “right” is not as important than doing what is safe. perhaps they need to think back to “brown vs. the board of education”, where the supreme court made a decision that went TOTALLY against the will of the people because it was the right thing to do according to the EQUAL clause of the US Constitution. The will of the people do NOT have to agree with a decision to make it just. What is right is right, regardless of the consequences.

  80. Kelly says

    If Joyce Kennard decides the majority does have the power to take away a fundamental right from a minority, she is a blatant flip-flopper from what she wrote in last year’s decision. How can she have such a dramatic change of opinion?

  81. says

    Let’s get a Petition started TO PROTECT MARRIAGE and make infidelity a CRIME (but only to those who are legally married) and propose that Divorce take place over a 12 month period and only be allowed after all other attempts to save the marriage have failed!

  82. Carol says

    WOW for a minute I almost thought we were going to be human beings… should’ve known better… So So Sad… The power of hate and abuse allowed and supported by the government. When did it become the right of the people to take away the rights of their neighbors?

  83. says

    It is my honor and delight to officiate for same sex marriages in Connecticut
    I even advised all my 100 or so civil union couples that I would upgrade them to marriage for NO charge (if they came to Norwalk or Darien).
    CT is proud to lead the way to provide this basic right to ALL couples.
    CT is the ONLY state where a same sex couple can get married in one day- no residency requirement, no blood test, no witnesses. Just the $30 license fee and $10 for a certified copy plus the fee for the officiant (which varies by officiant and by location). I do the entire process for as little as $200 (includes license and certified copy).
    I have couples who have flown in from CA, FL, TX, IN, OH, IL, Mexico and who have driven in or taken the train from NYC, NJ, PA, RI, VA
    Most couples have been together for YEARS…including one couple from Florida who have been together for 45 years! Let people love each other and take care of each other. Isn’t that what marriage is about?
    Mary Pugh, CT Justice of the Peace, Norwalk, CT http://www.ct-jp.com

  84. jonadia says

    why all this hate people? isn’t this all about love? or have you forgotten? You know what, I’m not american, I’m not an old, stuck in her way crony that some of the conservatives have been labeled (and much worse-for people who don’t like labels). I’m actually known to be quite adventurous, living in many different cultures and communities around the world for years now, amongst those who would otherwise quality as suspect class in America. Guess what, I love people of all classes and preferences alike; I happen to have personal conviction that would support my choice to have voted for proposition 8. The benefits you enjoy are not defeated…..we still love you….can you not respect our views as well -the majority did rule did it not? Obviously there are those who would be proponents of hate from both sides of the equation. Lets not be one of them.

  85. jonadia says

    why all this hate people? isn’t this all about love? or have you forgotten? You know what, I’m not american, I’m not an old, stuck in her way crony that some of the conservatives have been labeled (and much worse-for people who don’t like labels). I’m actually known to be quite adventurous, living/traveling in many different cultures and communities around the world for years now, amongst those people who would otherwise qualify as suspect class in America. Guess what, I love people of all classes and preferences alike; I happen to have personal conviction that would support my choice to have voted for proposition 8. The benefits you enjoy are not defeated…..we still love you….can you not respect our views as well -the majority did rule did it not? Obviously there are those who would be proponents of hate from both sides of the equation. Lets not be one of them.

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