Friday, March 6, 2009

Yesterday’s Prop. 8 Oral Arguments

Analysis of yesterday’s California Supreme Court oral arguments on Prop. 8 is in, and it’s looking a bit somber. The justices, including ones who voted in favor of legalizing same-sex marriage last year, were skeptical about the argument that Prop. 8 was a Constitutional revision that needed to be put to the legislature and not just the voters. They cited a major voter-approved amendment that reinstituted the death penalty in CA and was later upheld in court. Justice Joyce Kennard, who was part of the 4-3 majority who supported same-sex marriage last May, said “It would appear to me that life is, at least in my view, a fundamental right. The court said that particular initiative restoring the death penalty in California was not a revision.”

Chief Justice Ronald George, the Republican justice who was also in the majority on the same-sex marriage decision and authored the opinion, seemed to agree with the anti-Prop. 8 arguments that constitutional amendments are too easy to pass in CA (the state’s constitution has been amended 500 times since 1911). However, he too expressed skepticism that the court should step in, suggesting instead that it is the legislature’s duty to reexamine the referendum process.

Although it may appear that the court is leaning toward upholding Prop. 8, the one pearl of good news is that it also seems opposed to throwing out the 18,000 marriages of same-sex couples already performed in CA. Although pro-Prop. 8 attorney Kenneth Starr argued that the proposition should be retroactive, several justices bristled at the unfairness of invalidating these already-established nuptials.

Of course, only time will tell exactly what the justices will decide and what their opinion will say. And since the court will hand down this decision in just 3 months or less – we’ll know soon where same-sex couples in CA stand.

In the meantime, for more on yesterday’s proceedings, click here, here and here.

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