Well, it’s been a very long time since I stepped foot in here, but I have a few ideas on how I’d like to spruce the place up. First things first: I’ll open a couple windows and let some fresh air in. Rooms can get so stale and preserved-feeling when you leave them closed up for months at a time. Then, I think, I’ll take the sheets off the furniture and beat the rugs out. Lots of dust, but there’s a breeze coming through that should carry most of it away, and I can have a whip ’round with the vacuum later if it’s necessary. Light a gardenia candle and plump some cushions, and it’s just like home again.
And now we can go over the California Supreme Court’s Prop 8 hearing in comfort.
I missed almost all of Shannon Minter’s argument at the beginning. I was all ready to go, had my computer on and my earphones in, called up the California Channel’s site—and learned, like presumably thousands of other eager beavers, that the part of the series of tubes operated by the Cal Channel was clogged with enormous amounts of material. Okay, I thought, that’s quite irritating. Let’s see what they’ve got going on over at Queerty. Ah, excellent! A video feed! …Which is unfortunately just an embedded version of the Cal Channel feed, and equally inaccessible. So I was following along with Japhy’s Twitter updates, frantically clicking “Refresh” every 20 seconds or so, and then my computer turned off. Monitor too. It all just blinked off, and I couldn’t turn it back on. I tried toggling the power switch on my surge protector: nothing. I unplugged the computer and the monitor from the surge protector and stuck them straight into the wall socket: nothing. I called down to the Help Desk and informed the Helper there what was up, and he said he’d be up in a couple minutes to fix it.
Stung that I was missing what’s been described as the most important hearing the California Supreme Court has ever held, I tried another computer, which did at least get me back to the tweets. And then, just as the Helper came around, so did the news that someone else had been running a pair of space heaters (which I can’t very well scold, since it was 60 degrees in my office) and tripped the whole circuit. So the Helper flipped the breaker, I found out from someone else that the L.A. Times site was hosting a usable video feed, and al manner of thyng was wele, and Shannon Minter was just ceding the floor to Raymond Marshall.
I actually don’t remember Mr. Marshall’s argument all that much, nor Michael Maroko’s. I do remember Justice Kennard breaking in every other second to ask a two-hour question “just for the purposes of oral argument.” It didn’t take long for me to get right fed up with her contributions to the morning’s business. I thought Therese Stewart, when her turn finally came, was a knockout. She argued forcefully, intelligently, and with a legal precision that I thought did our side good.
Then came Chris Krueger from the attorney general’s office, about whom I think the less said, the better. Let me merely say that one should strive always to appear prepared when addressing a supreme court.
And yes, Ken Starr spoke. And yes, it was about as you’d expect.
More than the arguments—because we already know what they are, and we already know how they go—I’d like to focus on the justices. There were some very interesting currents aswirl (certainly) up on that bench. Now, I don’t really know from anything, and the veteran court-watchers I’ve read on the matter have said that predicting a case’s final disposition based on oral arguments is a mug’s game, so it’s not like any of this means anything. But it’s what I’m thinking.
The easiest conclusion to come to is that Ken Starr and his bigoted confederates lost big-time on the question of how Prop 8 affects the 18,000 or so same-sex marriages lawfully entered into between the time the Marriage Cases decision took effect and Nov. 5. I’d bet my lunch money that one’s going 7–0 against.
More complicated is the question of how the justices will vote on upholding Prop 8. It was pretty clear to me that Moreno and Werdegar are on the side of the angels here. At different times, they both put arguments in the attorneys’ mouths as to how the court could comport with established precedent and still find that Prop 8 had revised, rather than amended, the state constitution. I mean, Werdegar even straight up said, “There’s nothing that said a revision is limited to an alteration of the basic structure of government, right?” She’s convinced, and Moreno was right there with her.
Kennard we have obviously lost. I didn’t see how Maroko’s analogy, of an amendment that changed the title of women justices to “commissioner,” struck her (I had to get up for a quick second), but she was visibly struggling with the notion of overruling the electorate. I really want to be mean to her about this one, because from my point of view it’s so obvious what the proper decision is, but I can’t be upset that she’s taking seriously both the responsibilities and the limitations of her job. To a certain extent, she’s right; if I may stick John Marshall’s words in her mouth—for the purposes of oral argument—“it is emphatically the province and duty of the judicial department to say what the law is,” not to decide whether it approves of the law that has been enacted. But here’s the thing: As Stewart firmly reminded the court during rebuttal, the constitution of California establishes a distinction between amendment and revision, and provides different methods for accomplishing those two different processes. That means that it must be the duty of the judiciary, in interpreting the law, to draw the line between the two. That’s what the law is in this case. So I have to applaud Justice Kennard’s chariness of hacking away left and right at the expressed will of the voters with her great scythe of justice-as-she-sees-it, but she’s taking it too far in this case, and letting herself be persuaded (or covered) by some of the arguments she rejected in May. Deference is one thing, but capitulation is another.
Chief Justice George is an enigmatic one for me. The strongest signal I got from him is that it’s too easy to amend the California constitution. Oh, the disgust in his voice when he compared California’s over 500 constitutional amendments since 1879 to the federal constitution’s 27 amendments, in 100 more years. He’s too much a professional to let his dislike for the rules keep him from playing by them, but I wonder whether he might be interested in narrowing the set of situations where those rules apply. He did ask once or twice about the ratchet effect he heard implied in the petitioners’ arguments—the idea that rights could be granted under the equal-protection clause through amendment but could only afterward be removed through revision. I was pleased to hear Maroko (I think) admit that it sounds counterintuitive, but then explain how it actually isn’t. It was just a nice piece of candor and handholding in one place. I don’t know whether the chief was concerned that such an effect would be a bad one, but if so, I hope Maroko’s explanation helped assuage his worries. Also, one of the attorneys (I think a different one, but I don’t remember; it’s been a few days, and there were four squillion attorneys up there) made what sounded like an excellent argument: that the equal-protection clause itself was added through amendment, and certainly couldn’t now be removed simply by amendment. If that’s all true, that’s a nice point. But the upshot is that I don’t know how George stands on the issue. He shares some of Kennard’s concerns, but I suspect he’s more on our side than she is. After all, he wrote the Marriage Cases opinion; he’s got a little more on the line than she has.
As far as I can remember, Justice Baxter said very little during the hearing. He seemed mostly to be harping on the reinstitution of the death penalty in California, which was done through an initiative amendment. I’m of two minds on his focus on that. The first, and honestly most plausible, interpretation is that if it was okay for California’s voters to revoke the right to life of some convicts, after the state supreme court had granted it to them (by invalidating the death penalty), then it must certainly be permissible for California’s voters to revoke the right marriage of same-sex couples after the state supreme court had granted it to them. After all, life is a more fundamental right than marriage. There are some definite problems with this reasoning, most especially the way Prop 8 targets a group that the court recognized in May as a suspect classification, but it may be persuasive to Baxter.
The other interpretation of Baxter’s questions is kind of a goofball thing, but it’s…well, it’s not necessarily in the realm of the possible, but it might be peeking in from the lawn. Depending on who’s hearing the arguments and what the arguments are, in the wake of an overturning of Prop 8, the death penalty in California might fall. That would be a welcome (and most unexpected) unintended consequence of fighting for marriage equality.
I noted Justice Chin most for what appeared to be his serious consideration of a solution suggested by a pair of Pepperdine academics (and hundreds of blog commenters): the separation of civil marriage and religious marriage in California. He asked Maroko and Starr about their opinion of the state “getting out of the marriage business” altogether, and got a surprising agreement from the two attorneys. Both said that the state must provide marriage on equal grounds for all seekers (which doesn’t seem to square with Starr’s primary position on Prop 8, so now I’m confused), but Starr said it would be outside the court’s power to unilaterally convert all marriages to domestic partnerships. But if Chin is actually considering the idea that strongly, that sounds like he sees the current situation as one that requires a remedy, so he may not be out of reach for us. He was one of the bad guys in May, but this is a different question, and one that just may be plucking at him.
And now Justice Corrigan. I’ll tell you what, this is my only experience of her, but I think I kinda like her. She was witty, she was crisp, she demolished Krueger with a perfectly innocent-seeming “The question is withdrawn”—I really enjoyed her participation. I also think we may have her on this decision. She was insistent on clarifying with three or four of the petitioners’ attorneys that they were asking for a narrow rule: that an amendment that purports A) to revoke a right the court has recognized as fundamental B) from a specifically identified group the court has recognized as a suspect classification is properly a revision. That’s a very narrow rule indeed, and it has a focus and concern for equity to it that I think she may find powerfully attractive. Like I said earlier, I don’t know from anything, but I really think she’s considering siding with Moreno and Werdegar. She also seemed deeply disturbed to hear Starr argue that rights are defined by the people, and that a majority of voters could therefore validly amend the constitution to take away rights of free speech. When she pressed him on what the limits of this broad amendment power might be, he told her the people could vote in any new form of government they wanted (including, presumably, a form that is not democracy ["Hey, how did y'all become a dictatorship over there?" "Oh, we voted for it. I'm starting to think maybe the 47% who voted no but have been subjected to it anyway might have had the right idea..."]), and no branch of the actual government would have any authority to review that decision.
So I have a few predictions. Write them down so that you may ball up the paper you’ve written them down on and throw it at me when I turn up wrong.
- Nobody votes to make Prop 8 retroactive with respect to marriages entered into while the law was that same-sex marriage was legal.
- Moreno and Werdegar will find that this is a question of first impression for the court, and that they therefore have the power to decide a new set of criteria that may define a revision in addition to the ones already set out in California case law. They’ll say Prop 8 is a revision, and was improperly enacted.
- Corrigan will join Moreno and Werdegar, and will be the one responsible for formulating the new set of criteria: a revision can also be a constitutional change that seeks to strip a suspect classification of a fundamental right.
- Kennard will say it’s fine for the majority to take away whatever rights they want, as long as they do it as a majority.
- Whatever the decision is, Chin will write a dissent arguing that the state should abandon marriages altogether, and issue only domestic partnerships.
Unfortunately, I’ve got no prediction on George. Looks to me like it comes down to him. We’ll know within…[counting on fingers]…86 days.