Wednesday, March 04, 2009

Pre-Gaming the Prop. 8 Arguments

Tomorrow, the California Supreme Court will hear arguments in the Proposition 8 cases. There is much to talk about, but the critical legal distinction turns on the technical question of whether the initiative worked a "revision" or an "amendment" to the California Constitution.

A revision occurs when the "principles that underlie" the California Constitution are changed; an amendment, by contrast, furthers or better implements existing principles without changing them. (If that distinction seems artificial or contrived, it's probably because it is.)  Characterizing Proposition 8 as a revision is a win for the Petitioners, because revisions require approval of the state legislature -- something that has not happened here.  Characterization as an amendment, on the other hand, would mean Proposition 8 stands.

Here is a cursory rundown of the arguments, based on the briefing:

The Petitioners will argue that Proposition 8 was a revision (and not an amendment) because it divested the California legislature and the judiciary of the ability to safeguard the rights of a minority group. They will argue the initiative improperly targets a suspect class, and will attempt to cast the debate in terms of a change to the California Constitution's interest in protecting a marginalized and vulnerable population.

The other side will argue that Proposition 8 was an amendment (and not a revision) because the structure of California government has not changed. They will argue the initiative expresses the will of the people, and will attempt to cast the debate in terms of democracy rule.

My sense (sadly) is that the Petitioner's revision/amendment argument is an uphill battle, and that what is at stake here are the marriages already in place. If the Court determines that Proposition 8 was an amendment, it will confront the much thornier question of how to treat the existing 18,000 same-sex marriages. Petitioners will argue that the existing marriages must remain valid, because to repudiate them would be to enact an ex post facto law, would violate due process, and would amount to a state-compelled divorce. The other side will argue that Proposition 8's text and mandate are clear: same sex marriage is no longer recognized in California, the people have spoken, and the inquiry need go no further.

I have opinions about where the Court will come down on the first question (I think they'll call it an amendment, not a revision) but I'm at a loss with respect to the existing marriages. I doubt I'm the only one confused about the second question, but perhaps the oral arguments will illuminate.

Lastly, there is a political angle: which Justices will vote which way, and why? That's out of my league, but you can find some discussion here. You can also watch the arguments in real time here. My understanding is that the arguments will also be broadcast on a projector in Café Zeb Room 107 tomorrow from 9:00 - 12:00 p.m. Perhaps I'll see you there.



Anonymous Anonymous said...

thank you patrick. this is a nice summary.

3/04/2009 7:21 PM  
Anonymous Anonymous said...

Perhaps more hope and insight, but I'd like them see duck the second issue by finding it a revision.

3/04/2009 8:14 PM  
Blogger Beetle Aurora Drake said...

"A revision occurs when the "principles that underlie" the California Constitution are changed; an amendment, by contrast, furthers or better implements existing principles without changing them."

Could you point us to the source for this distinction?

3/04/2009 8:29 PM  
Blogger Patrick said...

It draws from Livermore v. Waite, which is an older case. You can find it at 102 Cal. 113.

3/04/2009 11:17 PM  
Anonymous Anonymous said...

Hi Patrick or anyone else there,

I have a friend at Haas who is looking for some Boalties to run around and hit things (namely people). Any way we could develop some cross-program love?

His message is below:

I wanted to know if your classmates (both JD’s and LLM’s) play or are interested in playing rugby? I am in the Haas Rugby club and we are recruiting for the Duke MBA Rugby Tournament. You don’t need to have an affiliation to the Haas School of Business to join our team. The tournament is on April 17-19th in Duke University. Last year we had an amazing time and we are looking forward to building momentum and have a great season this April. Logistics are being worked by Bao Vuong (Haas Rugby Club’s chair), and will be shared in the following days.

Here are some important dates for those who want to join us:

Friday practices: usually from 8:30am to 10am in the Hearst Field (right by the Hearst Gym)

Saturday, 3/14: GAME against McGeorge Rugby (Law School) in Sacramento. Opportunity to show other law schools who’s ‘n charge.

Can you forward this note to Boalt folks? Give them also my email address as team contact.


Ernesto Rodriguez

MBA Candidate 2009

Haas School of Business - University of California at Berkeley

phone: (510) 455-0234


3/05/2009 12:20 AM  
Blogger Peter said...

This comment has been removed by the author.

3/05/2009 8:48 AM  
Blogger Dan said...

The People: "We don't want gays to get married!"

The Court: "Too bad, you can't do that."

The People: "No, really, we don't want gays to get married. Check out Prop 8."

The Court: "Uhhhh...."

To be continued!

3/05/2009 9:50 AM  
Blogger Matt said...

why is Justice Kennard filibustering the oral arguments?

3/05/2009 10:29 AM  
Blogger Dan said...

Kennard: "Don't worry, a question is coming..."

Yeah? When?

3/05/2009 10:57 AM  
Blogger tj said...

Not heartened but hopeful.

3/05/2009 2:23 PM  
Anonymous Anonymous said...

Why was the AG so awful? I mean, he was really bad. I'm starting to think Brown came up with that argument to help win the upcoming Democratic primary for governor.

At least by saying that he disagreed with the revision argument, then rambling through a bizarre one he may have helped the petitioners.

3/05/2009 3:43 PM  
Blogger caley said...

3:43. You're "starting to think" Brown's last-minute, addendum argument to his brief is politically motivated? In my opinion that's the only conclusion I can make about his about-face on the issue.

3/05/2009 4:36 PM  
Anonymous Anonymous said...

Interesting how the GLBT community seeks equal rights through any process but democracy--remember, it was anti-gay marriage forces who put it to the people. Previous groups seeking civil rights have used all the levers of democracy (the legislature, the executive branch, and, yes, the courts) to implement their agenda. Why has the GLBT community broken from this and pinned their hopes exclusively on our court system?

In any case, if the GLBT community wants to be treated like everyone else, they should probably act like everyone else.

3/05/2009 7:32 PM  
Blogger Toney said...

Yeah! How dare they bitch about not being able to get married!?! Stupid gays, if they were just straight like everyone else, none of this would matter! Shame on them for standing up for equal rights.

If they get their rights, I suppose prisoners are going to want to want rights too. And perverts. And gluttons!


3/05/2009 8:29 PM  
Anonymous Anonymous said...

There's constructive bitching and there's just bitching, moaning, and complaining. Back in the olden days agitation didn't just get Brown v. Board of Education, it got the Civil Rights Act and the paratroopers at Central High.

What's the product of gay marriage agitation? A court ruling, yes, but also a bunch of vandalism against Mormons and a highly publicized boycott punishing those who disagree with us. The PR campaign needs a booster shot if they want to win on all fronts.

3/05/2009 11:34 PM  
Anonymous Anonymous said...

7:32, look at the timing. Brown was in 1954, Civil Rights Act was in 1964. The LGBT community is working on all fronts, its just the courts work faster. Its hard to build a legislative majority when your a minority group. Especially one that is still so vilified by a large segment of the population.

3/05/2009 11:58 PM  
Blogger angela said...

3/6/09, 7:32 = ignorant.

California pro-gay laws secured through the legislative process:
- adoption rights
- domestic partnerships
- employment protections
- hate crimes laws

California anti-gay laws defeated at the ballot box:
- Prop 6, better known as the Briggs Initiative (Cross-reference "Milk").

Also, if Schwarzenegger hadn't vetoed a legislatively-passed marriage equality bill not once but TWICE, we wouldn't have had to petition the courts in the first place. Remember, it was our Republican governor who told gay people -- "I'm vetoing this because I think the courts should decide the matter."

So, after that development, how exactly were we meant to proceed?

Please get your facts right before you start telling me I hate democracy.

3/10/2009 5:24 PM  

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