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Thursday, March 05, 2009

Prop 8 Oral Argument Reactions?

I was only able to listen to about an hour of the proceedings this morning, as the Supreme Court of California heard arguments on the validity of Prop 8 and the validity of the same-sex marriages that pre-dated its passage.  I'd be curious to hear our readership's reactions to the oral argument.  From what I heard, I didn't think the Court seemed very eager to call it a revision and strike it down.  What did you hear?

Posted by Ethan Leib on March 5, 2009 at 04:07 PM | Permalink


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"was that there was NO retroactivity inherent in the Amendment, which even Starr conceded. So the marriages up to November 7 are valid."

Your premise doesn't support your conclusion. Prop 8's intent wasn't retroactivity -- rather, it was intended to apply going forward, albeit to all would-be same-sex marriages. I don't think that anyone is seriously arguing that any benefits obtained by married couples in the interim should be repaid as ill-gotten gains.

But to the extent that you're attempting to suggest that "retroactivity" involves *present and future* recognition of a same-sex marriage, I think that there's a serious definitional problem that needs to be resolved in your argument.

Posted by: Adam | Mar 6, 2009 3:47:41 PM

The people challenging Prop 8 made the strategic decision to eschew the possible federal contentions (such as federal equal protection), in order to avoid any route to review of the state court decision by the US Supreme Court. That's why the argument centered so much on the amendment versus revision issue.

Posted by: David Levine | Mar 6, 2009 2:23:34 PM

All I know about the argument is what I have read in the papers online, but this struck me (It is from the SFGate story, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/BALP169S2G.DTL?ref=fp1):

[Clip] Starr also argued that Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation.

The initiative "does not erode any of the bundle of rights that this state has very generously provided," he said, but merely "restores the traditional definition of marriage."

Several justices seemed to agree. Kennard said the voters arguably "took away the label of marriage, but ... left intact most of what this court declared," including unprecedented constitutional protections for gays and lesbians. [End of clip]

So Starr is saying that the only thing this amendment does is to change the name of the legal relationship? Heterosexuals can have a "marriage," but homosexuals have a civil union?

On the one hand, that "modest" (to use John Roberts' favorite word) approach might sell the case to the court, but did the Prop. 8 supporters spend all that money for a WORD? On the other hand, isn't that just a side step to avoid having to think about the discrimination inherent in calling "the bundle of rights" different things depending on who is involved?

Consider this hypothetical: assume it is 1954. California says a white man and a white woman can get "married;" heterosexuals of different races can form a "domestic partnership" if one of the parties is white; heterosexual non-whites can form "civil unions." All three have the same "bundle of rights." Is there a denial of equal protection or substantive due process or even (let's think wildly here) a denial of privileges or immunities?

Posted by: Edward Still | Mar 5, 2009 10:23:26 PM

Well, the Court did not seem inclined towards the "philosophy" behind Amendment 8 as much as the technical language contained within it, thus spurring the arguments of "amendment" vs. "revision". In the midst of all the jargon, the one point that leaped out of it to me, was that there was NO retroactivity inherent in the Amendment, which even Starr conceded. So the marriages up to November 7 are valid.

As to the overall validity of the Amendment, the arguments made using the decision which the Court based overturning Proposition 22 last summer, was a discussion of two different topics: a Legislative Matter vs. an Electorate Matter, and on that basis it appeared the Court may be favoring the Electorate. With that said, even Starr left the door open for a Federal Appeal. Or so it seemed to me...

Posted by: Jay | Mar 5, 2009 5:41:28 PM

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