Court Appears Likely to Uphold Prop 8

The California Supreme Court heard oral argument today in the Proposition 8 case.  The case boils down to whether the passage of Prop 8 was an amendment to the California Constitution or a revision.  It will be upheld if it is the former and struck down if the latter.  The Court also sought to address the status of the roughly 18,000 same-sex marriages that were entered into between the Court's previous marriage decision and the passage of Proposition 8.

If I had to guess how the court will rule, I think they will uphold Prop 8 but not apply it retroactively to the same-sex marriages already in effect. The court seemed reluctant to overrule the will of the people.  Moreover, the Justices emphasized that same-sex couples had all the same legal rights as traditional married couples and that Prop 8 was more about nomenclature than deprivation of rights.  

Also, the opposition had difficulty explaining why Prop 8 was a structural change to government that required it to be classified as a revision.  The challengers repeatedly argued that Prop 8 was a deprivation of rights; it subjected same-sex couples to second class status, etc.  While these arguments likely found sympathetic ears on the bench, the Court seemed intent on steering the discussion to the amendment/revision distinction. The deprivation of rights argument seemed only to enforce the idea that Prop 8 was a amendment based on the Court's prior jurisprudence in the area.  

Additionally, the Prop 8 opponents' focus on the right to same-sex marriage seemed aimed at blurring the issue before the Court.  As Dale Carpenter noted,

In principle, the justices’ votes on whether there is a right to same-sex marriage and on whether a proposition repealing that right is an amendment, are independent questions. A judge could believe there’s a fundamental right to same-sex marriage but that the state constitution liberally allows amendments by simple majority votes. On the other hand, a judge could believe there’s no fundamental right to same-sex marriage, but think that once the right is recognized, the elimination of a fundamental right for a suspect class is such a monumental act, and is fraught with so many dangers if allowed to stand as a precedent, that it can be accomplished only by revision.

Kenneth Star faced an uphill battle in arguing that Prop 8 should apply retroactively.  Laws do not generally apply retroactively unless such an intent is explicitly expressed.  Despite language that California would only recognize traditional marriages "regardless of when or where performed," the Court did not seem persuaded that it was the will of the voters to apply Prop 8 retroactively.  

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