Prop 8 Ruling Will Come Out Soon! It's Prediction Time!

Constant Readers,

Oh boy, do I have some gossip for y'all! I heard from a pretty damn good source that a decision on the Prop 8 case will come down this Thursday!

There are only 2 weeks until the June 3 deadline, so a decision will be coming soon even if the scuttlebutt ain't true.

What will happen?

At oral arguments, I'll admit that things were not looking great for proponents of same-sex marriage. Ken Starr did a great job arguing that Prop 8 is legitimate and Jerry Brown sent a buffoon to argue one of the most compelling arguments for shooting down Prop 8.

But while one can never be 100% sure, I believe that Prop 8 will be declared unconstitutional. And it will be along the same voting line as the In Re Marriage Cases (IRMC) decision. [172-page decision here: Download Supreme Court Opinion.]

Here's why...

Remember that California voters passed Prop 22 back in 2000, which added language to the California Family Code declaring that only Opposite Marriage is ok in this state. That language was eliminated from our code by the IRMC decision.

In IRMC, the Court found that there was a conflict between Prop 22 and the equal protection clause of the State Constitution - and the State Constitution always beats a regular ol' law. Prop 8 put the Opposite Marriage language IN the Constitution, and the winner between the internally conflicting provisions is less clear.

Despite this difference, Prop 22 and Prop 8 both require a hard look at the "will of the people" versus the equal protection clause of the State Constitution. That is why the IRMC decision is informative: how the Justices viewed voter intent to pass Prop 22 can shed light on how they'll look at Prop 8.  

A few preliminary issues:

1) Background on the basic legal issues of the Prop 8 case is here and an essay describing the basics of the IRMC decision is here. I'll try not to repeat too much.

2) I won't be addressing retroactivity in this post. I already did a podcast discussing the reasons why same-sex marriages performed last year between June and November are probably safe.

Let's begin.

The California State Supreme Court has 7 Justices (don't call them "Judges"!) so the side that can get 4 votes wins.

Justices Baxter and Chin voted against same-sex marriage in the IRMC case and at oral argument on March 5, 2009 neither seemed interested in changing their minds when it comes to Prop 8.

Note that Chin kept asking about whether we could get rid of the term "marriage" altogether and just declare same and opposite marriages "civil unions." 

Justices Moreno and Werdegar voted in favor of same-sex marriage in the IRMC case and at oral argument, appeared supportive of it again this time.

So, we got 2-2.

As for the other 3...

Justice Corrigan:  Asked a number of insightful questions at oral arguments which led some pundits to believe that she might actually vote to strike down Prop 8. I don't buy that. Check out these quotes from her IRMC decision:

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages.  But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote.  This court can overrule a vote of the people only if the Constitution compels us to do so.  Here, the Constitution does not. 

The voters who passed Proposition 22 not long ago decided to keep the meaning of marriage as it has always been understood in California.  The majority improperly infringes on the prerogative of the voters by overriding their decision.

If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.

Don't look for her to change her position. She'll likely vote to uphold Prop 8.

Justice Kennard: Was hard on the same-sex marriage proponents. No question. But you can't just rely on that. For example, sometimes judges are tougher on the side they support because they want to make sure their own reasoning is sound.

She repeated a few times that, just because she was in favor of gay marriage in the IRMC decision doesn't mean she'll go for it in the Prop 8 case.

This scared a lot of people. But I went back and listened to the IRMC oral arguments and Kennard corrected a pro-gay-marriage attorney in that case who tried to say he knew how the Justices were going to vote. I think she just has a peeve against people making assumptions about how she'll rule. 

Frankly, I would be very surprised if Kennard rules against gay marriage.

Exhibit A: Remember in 2004, when Mistermayor ordered the County Clerk to marry same-sex couples because he thought the law banning same-sex marriage was unconstitutional? And the State Supreme Court said, "Uh, WE are the deciders of what laws are constitutional. Not you. Those marriages from 2004 are null and void because they were performed before we said same-sex marriage is ok."  That was the Lockyer case. Guess who argued that those marriages from 2004 should be recognized (not nullified)? Justice Kennard. 

Exhibit B: In the IRMC decision, Kennard fully signed on with the majority, but wrote a whole separate decision where she addressed the issue of judicial power and responsibility. Here are some excerpts:

The 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.

Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government. 

Indeed, this court’s decision in Lockyer made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be  reconciled with our state Constitution’s equal protection guarantee. 

Granted (as I wrote above) Prop 8 doesn't present exactly the same issue, but I think Kennard will continue to demonstrate an interest in protecting the fundamental rights of minorities by deciding that Prop 8 is unconstitutional. 

Chief Justice George: Is harder to read than the others. At oral arguments, he started down the road that taking away the word "marriage" was just a small change - and thus an amendment (which is ok) - not a revision (which is not ok). But then Ken Starr got up to argue against gay marriage and basically said: no change to rights is ever a revision. (Only changes to government processes are revisions - things like getting rid of courts or the legislature.)

And George was all: Seriously? A majority of voters can take away any minority's rights and it's always constitutional? 

Yep.

At that point, it looked like George lost faith in Starr's argument.

Remember too, that George wrote (okay, his clerks wrote) the majority opinion in the IRMC decision. Some excerpts on the "majority rule" issue:

Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute — having been adopted through the initiative process — represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. 

As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”  

Given the above, I think he'll vote against Prop 8.

That puts us at 3 in favor of Prop 8 (Baxter, Chin, Corrigan) and 4 against (George, Kennard, Moreno, Werdegar). Same as the IRMC decision.

Admittedly, there is no way to know what will happen in the Court's forthcoming decision.

But there is reason to hope.

--Melissa

Comments

[gdewar]

When you do these kinds of "look back at the facts and use your legal knowledge" know how to decode stuff like this for the rest of us who don't have a law degree....well....all I can say is PLEASE continue and if I ever go to law school please allow me to take one of your classes...

[Patrick]

Good summary. One thing I haven't seen the press or commentators explain -- what's the reason the challenge to prop 8 was brought under the State Constitution's Equal Protection Clause and not under both the Federal Equal Protection Clause and the State Equal Protection Clause? I'm speculating here, but were the challengers trying to avoid potential federal court review?

[Melissa Griffin]

Patrick - You are correct that supporters of gay marriage want to avoid the Federal Equal Protection clause. This is so, at least in part, because the US Supreme Court has never recognized homosexuals as a "suspect class" - which is the designation that gets any law singling out that class scrutinized carefully. In CA, the Cal State Supreme Court ruled in IRMC that gay people are a suspect class - which is why the law singling out gay people for different treatment was held to be unconstitutional.

To put it another way: criminals are not a suspect class. You can make up all kinds of laws that treat them differently and not violate the equal protection clause. That's why getting that "suspect class" designation is important.

The USSC hasn't exactly held that gay people are NOT a suspect class, but given the current makeup of the Court, no one wants to test their luck.

Thank you for writing!!

[Paul Hogarth]

Melissa, I hope you're right ... but watching the oral arguments in March was the three longest hours of my life. Joyce Kennard wasn't just hard on gay marriage proponents ... she was EXTREMELY defensive. And while she may have been a little that way last year, folks I've talked to said the opposite ... it was almost like having one of our lawyers on the bench. She's a strange one ... never shy to express her opinions, always leaves her cards on the table, but doesn't have a lot of influence with her colleagues.

Ron George, I'd say, was also pretty bad ... although I believe that if he does rule in our favor (as you said), it would be because Ken Starr's logic was so insane. But George is a cautious guy, and I can see him issue a ruling upholding Prop 8 ... while explicitly repudiating Starr's reasoning and implications.

[Melissa Griffin]

@Paul - as usual, you are correct. This will be a very close case that could easily go in favor of Prop 8.

[Michael Ejercito]

What court precedents exist that would lend credence to the hypothesis that Prop 8 is an amendment?

[Melissa Griffin]

@Michael - There are no direct precedents that say Prop 8 is an amendment OR that say it is not an amendment. This is a case of first impression for the Court. Thank you for writing!

[Be_devine]

Great analysis of the arguments, Melissa!

The Court just announced that no decisions will be published tomorrow. I think what fueled a lot of speculation about a decision tomorrow was SFPD delivering barricades in the Castro last night. But that's for tomorrow's 30th anniversary of the White Night Riots. (Which, by the way, would have made for an exceedingly poor choice of date for the Court to publish its decision.)

That leaves next Tuesday and Thursday and the following Monday (6/1) as the only possible remaining "Decision Days." My prediction is a decision on 5/28 overturning Prop 8. I'll be happy to be wrong on the first, but not the second, part of my prediction.

[vansmack]

Just for further clarification of the point Melissa was making for Patrick...

On the Equal Protection Clause, the United States Supreme Court sets the floor for suspect classes, in other words no State law can violate the rights of these recognized suspect classes. It does not, however, limit a state from recognizing its own set of additional suspect classes (or in common terms, it does not "set the ceiling").

In the case of California, Iowa, Hawaii and numerous other states, sexual orientation is a protected class and the Federal Government, absent a law from Congress, has no authority to hear a case on the subject. That is why there is no discussion on a Federal challenge.

[Mike]

Great summary - and while IANAL, I think the court has only really two options, throw out Prop 8 or get the state out of the marriage business. Of those two options, throw out Prop 8 seems the more likely since it is the less disruptive remedy of the two. And I'll go way way out on a limb here and say that the ruling will be unanimous; here is my reasoning (and it follows the Jerry Brown argument) marriage is a right that comes from Article 1, Section 1. This case isn't about marriage equality now - it is about whether the electorate can cherry pick rights away from minority groups. To me, the answer has to be a resounding NO. To rule otherwise would be to toss out one of the basic principles to which the republic (both California and for that matter the United States) were founded - equality under the law. The key difference as to why I think it will be unanimous is that prior to IRMC gay people were not a suspect class - AFTER IRMC gay people are a suspect class. That designation is a very key point - and I think the majority in IRMC put it there to guard against something exactly like Prop 8 from happening. The dissenting justices in IRMC can't just ignore it - it is settled law in California. It was funny how Justice Kennard kept telling everybody that we have a different constitution after Prop 8 - which was true. What I think she was hinting at was that we had a different constitution also after IRMC - and I believe the changes that were codified after IRMC trump the change that was made by Prop 8 - the suspect classification is the key.

[Felix]

Fantastic! This is the best summary I've read since Prop 8 was enacted. I'm a fan of your blog!

Pleasure meeting you at Etiquette the other night.

[vansmack]

Alright Griff, I've caught up on all your materials, and I'm sad to say that I'm going to have to disagree with your prediction. I see Hawaii all over again....

Same sex couples want to get married. CHECK
People sue. CHECK
Court says nothing we can do about it, they're protected. CHECK
Court continues...absent the legislature or the voters telling us differently IN THE CONSTITUTION, we have to uphold the suspect class' right to enjoy something other classes enjoy. CHECK

CA is a little different in that it attempted the IRMC first, court said "Hey douchebags, we said in the constitution, this just a regulation..." REJECTION.

Then, the voters make a constitutional change to ban same sex marriage. CHECK

In Hawaii that decision was upheld and I suspect the same will happen next week.

The only way I see this being overturned is if the court decides procedurally that there's an imbalance in requiring 2/3 majority of the legislature to amend the constitution but a simple majority of the electorate to amend the constitution, but a decision like that will unravel 50+ voter approved amendments to the constitution (I'm not saying I wouldn't want to see that, but simply that it's unlikely). The Bay Area Council would love it though because it would force a constiutional convention...

So I hope I'm wrong, but I think Prop 8 stands and in the next decade the voters overturn it as familiarity breeds more tolerance. Younger voters support gay marriage 2-1 over the elderly. Embarrasingly, it's just going to take more time in CA.