In Prop 8 Hearing, Justices Look For Solutions Beyond the Bench

Now the waiting game begins.

In a three-hour long oral hearing last Thursday, justices grappled with the fate of Prop. 8 as gay and lesbian rights attorneys, civil rights lawyers and representatives of both the City of San Francisco and the Attorney General's office asked them to overturn the ban. So, how'd we do? Short answer: It appears Prop. 8 will be upheld. The longer answer, however, is more interesting.

A big disclaimer before going further: I'm neither a lawyer nor a fortune-teller. My impressions of the court and where they're headed are based on a layman's view. That said, the purpose of oral hearings like yesterday's is for justices to test out their proposed rulings by asking both sides pointed questions, and from what was asked yesterday, there's quite a bit you can infer.

It was Associate Justice Joyce Kennard's special day in court yesterday. Described as a moderate Sandra Day O'Conner-style judge, Kennard delighted in asking pointed, direct questions of the challengers (that's us), all the while grinning like a Cheshire cat. Our feeling is that Kennard wasn't getting any particular delight about smacking gays and lesbians down, so much as she just really enjoyed having a good legal argument.

Hers came down to this: Proposition 8, in her mind, did nothing other than remove the word "marriage." In no way did it effect the rights and privileges contained within the word "marriage." Attorney Michael Maroko pointed out that if Prop. 8 is left standing, Californians could pass an amendment that called all female justices "Commissioners" while conferring on them all the same rights and privileges as male "Justices." It was one of the few moments that left Kennard without a witty or dismissive retort.

The National Center for Lesbian Rights' attorney, Shannon Minter, pointed out late in the game that the word "marriage" has certain connotations in terms of contracts and legal rights that can't be easily translated into another form. Recently, the state of New Jersey came to the same conclusion – that civil unions did not equate with marriage – and they are now moving forward with gay marriage legislation.

Which comes back to the heart of the questions that the California justices were asking yesterday. They seem unconvinced that they have the authority to overrule a voter ballot initiative, and many of them suggested remedies outside of the court. Chief Justice George repeatedly seemed to indicate that he agreed it was far too easy to change the Constitution under the current system, but essentially said, "These are the rules of the game, regardless of whether they are fair or not."

Justice Chin asked both the gay rights side and Ken Starr, who represented the Yes on 8 campaign, if the state ought to get out of the marriage business entirely. Maroko said, "If you're in the marriage business, do it equally. And if you're not going to do it equally, get out of the business." Both sides agreed that if the state were to only offer civil unions for everybody and leave the designation of marriage up to religious groups, they'd be satisfied. It's actually a sensible solution and the one we'd like to see the court make if it refuses to overturn Prop. 8, but the court did not seem to be in an activist mood yesterday.

On the other hand, the justices rejected Ken Starr's argument that Prop. 8 ought to retroactively apply to the 18,000 couples who were married last year in California. Starr argued that Prop. 8, because it does not "recognize" gay marriage, doesn't invalidate the marriages, so much as says the state is nor blind to them, but even Kennard though this was nonsense, asking Starr how a voter could infer his interpretation from the initiative. Chief Justice George derided the vagueness of the bill as being a "political" tactic, suggesting that voters may have rejected the ballot if it explicitly stated that existing married couples would have their marriages revoked.

They seem unconvinced that they have the authority to overrule a voter ballot initiative.
So, where does this leave us? Justice Kennard was the swing vote in the marriage case and based on her questioning yesterday, it was her mind that needed the most making up. In her estimation, changing the word "marriage" isn't a drastic enough change to constitute a revision of the California constitution, which means Prop. 8 will be upheld, it seems, while existing married couples will stay married. The question is whether the court will order the legislature to do something about the current imbalance. It has the authority to do so and having 18,000 married people having the legal status of their relationships existing in a perpetual zombie state (though "zombie marriage" has a great ring to it) guarantees there will be more lawsuits.

One option would be Justice Chin's—to get California "out of the marriage business" altogether. Another would be to revise the ballot initiative process to explicitly state that an initiative that changes the rights of a suspect class ought to be considered a revision. The question is whether the court will suggest a remedy or order one. This really has more to do with the California constitution than it does with gay rights, to be honest. The justices are essentially throwing up their hand and saying, "Yes, this is a totally stupid and wrong thing for the voters of California to do, but the way the constitution is written, we can't do anything about it." The attorneys supporting gays and lesbians strenuously argued that they in fact, have the authority to do what they want, that while the will of the people is important, the people also willed the court to have authority over it from time to time.

The justices will announce their decision within 90 days.