ANALYSIS: The CA Supreme Court Proposition 8 Decision

The San Francisco Chronicle has an interesting front-page article in today's paper trying to read between the lines in Wednesday's California Supreme Court decision to hear the lawsuit challenging the constitutionality of Proposition 8.

The meatof the story concentrates on Justice Joyce L. Kennard, who voted with the 4-3 majority in the case legalizing marriage equality, but who (surprisingly!) voted against the petition to hear the lawsuit challenging Proposition 8's constitutionality.

Kennard's vote a bad sign?

While both sides cheered the court's decision to take up the cases, Kennard's lone vote to deny review could spell trouble for opponents of Prop. 8.

Kennard is the court's longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples' rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.

"It's always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn't warrant review," said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.

For those seeking to overturn Prop. 8, "I would not think it would be encouraging," said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.

I'm not sure this is the correct interpretation of Justice Kennard's vote. In the marriage decision released May 15, 2008, Justice Kennard wrote a separate concurring opinion, in which she said:

"[T]he constitutionality of the marriage laws' exclusion of same-sex couples is an
issue particularly appropriate for decision by this court, rather than a social
or political issue inappropriate for judicial consideration," explaining that
"[t]he architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian
institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection."[emphasis added]

Does this sound like a woman who believes that 52% of Californians can deny a fundamental right by a majority vote? Justice Kennard had also written in her concurring opinion that she felt that the 4,000 couples who had been married in San Francisco in 2004 should have been allowed to remain married until the California Supreme Court resolved their constitutionality. However, if that is her position, it is somewhat odd that she didn't vote with Justice Moreno to dissent in the refusal to issue a stay on Proposition 8 going into effect, but she may have been against a stay for other judicial reasons.

The more interesting person to watch will be Justice Carol Corrigan, who as I have stated many times before, lives with another woman in the Bay Area, but voted against the majority in the In Re Marriage Cases decision. Her position then was that the Court was not exercising sufficient judicial restraint, although she believed that " Californians should allow our gay and lesbian neighbors to call their unions marriage" but "a majority of Californians hold a different view, and have explicitly said so by their vote." I believe that she will be key in whether we win the current case.

The Chronicle article also has an excellent summary of what the issues are at stake moving forward:

What is before the state high court:

1. Does Proposition 8 make such a far-reaching change to California's Constitution that it amounts to a constitutional revision, which requires a two- thirds vote of the Legislature to be placed on the ballot?

2. Does Prop. 8 violate the constitutional separation of powers by restricting judges' authority to protect the rights of same-sex couples?

3. If constitutional, does Prop. 8 invalidate the 18,000 same-sex marriages that took place in California between June 16, when the court's ruling legalizing gay and lesbian unions took effect, and the election?

What's next

Next steps for the Proposition 8 cases before the state Supreme Court:

Written arguments: The parties in the cases - same-sex couples, gay-rights advocates and city and county governments challenging the law, and the state attorney general and the Prop. 8 campaign defending it - are scheduled to file written arguments through Jan. 5.

Briefs: Other interested individuals and groups must file friend-of-the-court briefs by Jan. 15. The parties have until Jan. 21 to reply to any of those briefs.

Hearings: No court hearing has been scheduled yet, but it could take place as early as March. A ruling is due within 90 days of the hearing.

The lead case in Wednesday's order is Strauss vs. Horton, S168047.

Stay tuned.