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. 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!!


    Posted by: Tralfaz | Mar 5, 2009 4:52:54 PM

  2. 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.

    Posted by: JE | Mar 5, 2009 4:52:56 PM

  3. 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.

    Posted by: Sebastian | Mar 5, 2009 4:53:41 PM

  4. 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.

    Posted by: Tralfaz | Mar 5, 2009 4:56:04 PM

  5. 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.

    Posted by: HuH? | Mar 5, 2009 5:01:12 PM

  6. 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.

    Posted by: Jeffrey | Mar 5, 2009 5:03:50 PM

  7. 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.

    Posted by: Eric | Mar 5, 2009 5:07:01 PM

  8. 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.

    Posted by: Javier | Mar 5, 2009 5:07:38 PM

  9. 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.

    Posted by: Alan | Mar 5, 2009 5:08:02 PM

  10. 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!

    Posted by: Tralfaz | Mar 5, 2009 5:12:41 PM

  11. 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!

    Posted by: gayalltheway | Mar 5, 2009 5:13:02 PM

  12. 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.

    Posted by: ctsf | Mar 5, 2009 5:13:45 PM

  13. 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.

    Posted by: Patrick | Mar 5, 2009 5:14:36 PM

  14. "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?

    Posted by: Dan | Mar 5, 2009 5:16:56 PM

  15. 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.

    Posted by: Tralfaz | Mar 5, 2009 5:17:05 PM

  16. 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.

    Posted by: Paul R | Mar 5, 2009 5:17:33 PM

  17. 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.

    Posted by: Will | Mar 5, 2009 5:19:11 PM

  18. 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.

    Posted by: Mormon rights | Mar 5, 2009 5:19:34 PM

  19. 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?

    Posted by: Ted | Mar 5, 2009 5:20:48 PM

  20. 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.

    Posted by: Patrick | Mar 5, 2009 5:33:06 PM

  21. 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....)

    Posted by: Lena Dahlstrom | Mar 5, 2009 5:34:42 PM

  22. Ted - La Jerry is too busy gearing up to run for gov and needs to start kissing asses.

    Posted by: Tralfaz | Mar 5, 2009 5:35:11 PM

  23. 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.

    Posted by: entspeak | Mar 5, 2009 5:35:38 PM

  24. "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?

    Posted by: ScottJ | Mar 5, 2009 5:36:25 PM

  25. Dan, why do you keep saying that we'd need a 2/3 vote to challenge prop 8 on a ballot? I haven't heard that anywhere.

    Posted by: Jon B | Mar 5, 2009 5:36:59 PM

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