California Supreme Court Case S168078

The Supreme Court hearing on Prop. 8 just finished. There were three hours of debates, five people arguing for its overturn, and Ken Starr arguing it should be maintained. Although my cold, now in its second week, prevented me from showing up in person as I had planned for months to do, I was able to get a live streaming of the deliberations on the computer, over morning toast and tea. Not a bad compensation prize.

If you are not used to how different Supreme Court hearings are from other court hearings, it will probably come as a shock to hear the justices interrupt and even badger the lawyers making their cases, sometimes asking them questions before they’ve even said Word One. They wouldn’t characterize it as badgering, I’m sure, but it comes across that way at times. Which is fine. It’s refreshing to see people get to the point and abruptly bring others back to it, after all the years I spent sitting through hours and hours of public meetings, including court sessions, where one bloviator followed another.

Thousands of people watched these proceedings on pins and needles, as I did, desperately seeking to predict the outcome from the nature of the questioning. Before I tell you what I predict the outcome will be, let me say just how hard that is, and how little confidence I have in my conclusions.

The California Supreme Court justices each have their own style. All of them strike you as profoundly intelligent, occasionally as crafty. Every one of them would be an advocate you’d want on your side. They are lawyers’ lawyers. You sense that when they work collectively, as you assume they always do, they leave no stone unturned, no issue unaired.

It was clear from the outset by their demeanor and from the fact they wanted to ask questions more than listen to answers that they had done their homework and were ready for the fight. I was surprised, in fact, at how hard it was for presenters to make their case, and I feel the petitioners were given short shrift, although in fairness to the justices, they had read all the arguments already in the briefs. You could see what issues they had already settled in their minds and what issues they were in need of help on. Justices George and Kennard did most of the talking for the court, Justice Baxter the least, but none was about to sit back. What kept you from predicting their decision on the basis of the slant of their questions was the fact that you couldn’t always be sure when it was confirmation they were looking for and when they were hoping somebody would challenge their tentative conclusions. They are master devil’s advocates, and masters at pushing the logical consequences of decisions through hypotheticals.

My guess is that they will uphold Proposition 8 but allow the 18,000 same-sex marriages legalized between May 15 and November 5 to stand.

If I am wrong – and I profoundly hope that I am wrong about their letting Prop. 8 stand – it will be because I am giving too much weight to Justice Kennard’s line of questioning. She all but came out in total agreement with Ken Starr’s argument – that in a democracy the people reign supreme. Starr all but conceded that Prop. 8 might be mean and stupid before arguing that the opinion of the masses didn’t need to be wise, or even “right.” It still had to be respected as the opinion of the majority.

The petitioners (petitioners = invalidate Prop. 8; interveners = uphold Prop. 8) made passionate articulate arguments that there were such things as fundamental inalienable rights that people could not overturn. Those two words, fundamental and inalienable, figured large in the debate. The justices showed they were concerned how one would identify just what those are. In the absence of clarity over whether the right to go fishing was up there with the right to free speech (believe it or not, there is legal precedent that speaks to that issue), I got the impression Kennard was buying Starr’s argument.

Last year, what worried gays and lesbians was the fact that they are all Republicans, except for Moreno. Baxter and Chin are “conservatives” and the rest (Werdegar, Corrigan, George and Kennard) are considered moderates, politically. But this is, I think, an example of where the liberal-conservative spectrum of labels falls down. Last year, George, the moderate in the middle, and chief justice, wrote a strong defence of the right of gay people to marry. Kennard concurred strongly.

Today, Kennard explained her decision. She found that right in the constitution. And she will make her decision on today's hearing on the same basis. That is not happy news for Prop. 8 opponents, since now the constitution contains Article 1, Section 7.5. If that doesn’t ring a bell, that is Prop. 8 now written into the Constitution. Last year it wasn't there; this year it is. In both cases her job as Supreme Court justice is to uphold the Constitution. That’s a position both progressives and conservatives endorse, although they may disagree with her reasoning.

We should not be talking in terms of justices taking or switching sides, and drop our overuse or misuse of the terms liberal, progressive and conservative when it comes to legal reasoning. A progressive could well take the stance that there is no greater sovereign power than the will of the people on progressive grounds, and a conservative could do the same on conservative grounds. What troubles me, though, if I have read her right, is that she is effectively saying, “Go ahead, people. Exercise your right to be unwise. I cannot and will not interfere.” That strikes me, who likes the progressive label, as a failure to exercise the court’s prerogative to interpret the Constitution according to its overriding spirit. But perhaps not.

“OK, people,” I think I heard her say, “Get up and change the constitution again the way you did this time.”

How much she was speaking for others, as I say, I can’t be sure. I’d love to be a fly on the wall when the Court confers and they have their own private debate on the merits of the argument that some rights cannot be abrogated. Justice George probed that issue several times. What happens if the people of California determine at some future date that only men can be justices of the Supreme Court? Does the majority have the right to override hard-fought and hard-won rights of citizen equality without regard to categories of identity, usually referred to as minority status?

Two other issues, besides Justice Kennard’s line of questioning, are telling. One is there was considerable discussion about whether to leave the interim marriages intact. It was generally understood that if they were inclined to invalidate Prop. 8 this would be a moot point and not worth spending time on. Since they did spend so much time on it, that suggests they are seriously considering upholding Prop. 8.

One question was whether “invalidating” those marriages suggests that no contract is safe. How is a Californian to enter into a contract if he or she knows that at some future date it can be invalidated?

Ken Starr made the kind of distinction that makes people hate lawyers. You don’t “invalidate” any of the marriages. You simply “withhold recognition” of them from now on.

“What if we were to up the marriage age to 21,” Justice George asked, “and declare that all marriages between 18-to-20 year olds were no longer to be recognized?” No problem, Starr answered. There are other ways for them to be recognized as common-law relationships.

Nobody connected the dots that this clearly puts gay marriages into a second-class status – which was the heart of the proponents’ argument. We will have to wait for the written decision due in the next 90 days to find out what play that argument got.

I’m leaving out the many complexities which will no doubt be summarized in various media venues in the coming twenty-four hours and beyond.

I just wanted to get out the word that I am afraid we might not win this battle, and will have to sit on our bitter disappointment until the next referendum, confident in the knowledge that with every passing year people are less and less inclined to see gay people as unworthy of equal rights. From Prop. 22 to Prop. 8 there was a huge drop in anti-gay sentiment abroad in the land – indeed Prop. 8 passed by only four percentage points. We’re simply going to have to wait and let this process continue.

If they do let Prop. 8 stand, there is no denying it will be a terrible blow, and lots of people will take support of the “majority rule” line of reasoning to mean you can express your homophobia freely. It may set back gay rights more than just a year or two.

For that reason, I can’t tell you how fervently I hope I’m wrong about Justice Kennard’s having made up her mind and about the possiblity she represents the majority opinion.

I’ve been terribly wrong about a lot of things lately. Pray God this is just another one.