Re: Prop 8 Oral Arguments in CA Supreme Court [MER
While I don't disagree that the tone of the statements and questions from the bench generally suggested that the Court would uphold Prop 8, it's also true that judges can use questions to test their own thinking and opposition to it.
Usually in these appeals the judges ask questions that present counter-arguments to whatever is being said by whichever attorney is standing up. That way they find the holes in the argument.
So you're right, you can't assume that just because a judge asks a question that sounds pro-8 or anti-8, that they've already made up their mind. Which is not to say you can't listen for more subtle clues. In this case, most observers think the subtle clues point to a pro-8 decision.
To me, I still don't see how the Court could live the precedent of permitting Prop 8. Keeping the definition of revisions to only structural changes, as one of the anti-Prop 8 lawyers pointed out, seems like protecting the moat while ignoring other direct attacks on the castle.
See the thing is, this hearing really wasn't about the
merits of Prop 8. It was about its
validity.
California is very proud of its ballot initiative system, which was introduced as a way to make state government more democratic (even though it's produced many a lame-brained law). Constitutional amendments are particularly considered sacred. The burden of proof is definitely on those who challenge them.
So you can't do something like, say, eliminate the legislature through a ballot initiative. But apparently practically anything else is fair game.
The precedent they kept referring to was the death penalty in the 70's. The Court had overturned the death penalty because it's barbaric. But a ballot initiative restored it, and the Court felt it had no choice but to bow to the will of the people. So they kept saying, if it's even all right to deprive somebody of their life by a ballot initiative, how much more so for a less important right like marriage.
The only thing that can get in the way of this argument is that gays are a "suspect class", meaning attempts to deprive us of our rights are treated with suspicion. We've actually only had that standing since the Marriage Cases last year, and there was nothing in Prop 8 to change that (cause the guys who wrote it are pretty smart).
I also liked the if-names-don't-matter-let's-call-all-female-judges-commissioners line.
Yeah, I liked that too. It's actually a pretty good argument that they didn't use often enough.
The trouble is that, in my cynical view, judges just use judicial thinking to cloak their own personal and political prejudices and inclinations and this bench was only ever marginally pro-gay. Upholding Prop 8, as the will of the people, is simply the easier decision for them to take.
I agree. The vote on gay marriage last year was 4-3, so if one of the 4 changes her mind, that's it.
I thought the Attorney General's lawyer was ill prepared and ridiculous. He could at least have presented his case as an alternative theory only. Maybe that's not permitted? As it was, the Attorney General's position came across as unconvincing and was used to attack the other anti-Prop 8 arguments.
Agreed. But I don't know if he actually did any harm or not.
Is the Ken Starr/brilliant comment ironic? Sure he was fluent, but his superficial melifluence took him to some very strange and unconvincing places. On his case, a simple majority vote can, for example, take away free speech (albeit that it would remain protected federally). Likewise, his position on the existing gay marriages was spurious in its expression. Even he didn't seem to believe what he was saying and he tripped himself up on the validity/recongition issues.
Not at all ironic. Wouldn't you say that any prosecutor who could persuade Congress to impeach a president with a 70% approval rating was brilliant?
In this hearing he was very smooth and deferential. Unlike the lawyers on our side, he always had an answer ready and never interrupted a judge. As for his arguments, a lot of people I'm sure are shocked about the taking-away-rights-by-majority-vote thing, but apparently it's an accepted principle in California.
