Home > Prop 8 Trial > From my notes in the Prop 8 courtroom

From my notes in the Prop 8 courtroom

September 10th, 2011

When I went to San Francisco last week to cover the Prop 8 trial, I indicated that I would be watching for something specific from the Marriage Redefiners.  Will they try to distinguish their case:

That is, will they try to come up with some argument that distinguishes the Proponents of Prop 8 from Proponents of other potential ballot initiatives.  If they make no attempt to do that, we might conclude that they don’t care whether they destroy the initiative process. They just want what they want, and they don’t care about collateral damage.

            I knew that I cared about this, as a fundamental issue of fairness and good government. Will the Marriage Redefinition Crusaders gut the initiative process, just to get the outcome they want? I wasn’t prepared for the extent to which the justices of the CA Supreme Court cared.

I am sorry, but not surprised, to report that Ted Olsen made no serious effort to create a legal argument that would apply to Prop 8 and not to other ballot measures.  The Justices were appalled by his cavalier attitude toward the voters.  The justices brought up the sovereignty of the people.  The justices clearly value the fundamental right of the citizens to participate in a meaningful initiative process, and are most reluctant to gut that right.  

Justice Carol Corrigan observed that Olsen’s theory would give the Attorney General the right to ‘pocket veto’ any voter initiative. Justice Joyce Kennard noted that to agree with Olsen is to nullify the power of the people. Justice Kathryn Werdegar noted that “we” (meaning the Supreme Court of California) have always given ballot Proponents standing in court.  But Chief Justice Tani Cantil-Sakauye noted that this case was the first case in history in which the Proponents were the sole defenders of a measure. In past cases, the Proponents have stood “shoulder to shoulder” with the Attorney General.  She asked what would happen to the state’s interest in a law, if the Attorney General refused to defend it.  “Does the state’s interest evaporate?”

Even the newest member of the California Supreme Court, the notoriously liberal advocate of marriage redefinition, Justice Goodwin Liu, balked at the breathtaking claims advanced by Ted Olsen. “Doesn’t it blinker reality?” he asked, to assert that ballot Proponents are no different from any other citizen who voted for Prop 8?

The ultimate challenge to Olsen’s theory came from Justice Ming Chin, “Would you really have us hearing only one side of this case today?”  Olsen did not exactly answer that question directly. But in effect, his answer was yes, he would have the court hearing only one side of the case: his own side.  

                The Justices of the California Supreme Court, a body which has no problem with redefining marriage, was visibly appalled by the expansive theories offered by Ted Olsen.  Our friend Leo calls the behavior of the Marriage Redefiners in this case “lawfare.”  I agree with Leo.

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  1. Sean
    September 11th, 2011 at 08:32 | #1

    I certainly hope the Prop 8 supporters get standing, so the 9th Circuit can impose marriage equality on all states in the 9th Circuit: Alaska, Hawai’i, Washington, Oregon, California, Idaho, Nevada, Arizona and Montana. And Guam! That will go a long way toward normalizing being gay, and promoting gay marriage nationally.

  2. John Noe
    September 11th, 2011 at 16:57 | #2

    Remember since this same CA Supreme Court refused to overturn Proposition 8 and allowed the people of CA to amend their own Constitution I do not see how they can possibly argue against standing in this case.

    We all know that the Ninth Circuit is a pretty bad court, but they would set new precedents for judicial tyranny if they ruled against Proposition 8. After all nowhere in the federal Constitution or the Bill of Rights does it say that the federal government has the authority to overide the 10th amendment rights of the states.
    It would be pretty absurb if the Ninth Circuit claimed that it was unconstitutional for the people of CA to amend their own constitution.

  3. Roivas
    September 11th, 2011 at 17:46 | #3

    If California amended their constitution to say that blue eyed people had to pluck out one of their eyes by age 12 as condition to live in the state, I imagine that the 9th circuit would have something to say about it. Federal can and often has trumped state laws and even constitutions.

  4. bman
    September 11th, 2011 at 22:02 | #4

    Roivas :
    If California amended their constitution to say that blue eyed people had to pluck out one of their eyes by age 12 as condition to live in the state, I imagine that the 9th circuit would have something to say about it.

    Indeed, but that is based on a principle that a higher law exists than the authority of the people and their Constitution. That would be the law of nature and of nature’s God as mentioned int he Declaration of Independence.

    Same sex marriage is not mandated by the law of nature but actually defies it, and so the will of the people people should stand.

  5. bman
    September 11th, 2011 at 22:19 | #5

    Sean :
    I certainly hope the Prop 8 supporters get standing, so the 9th Circuit can impose marriage equality on all states in the 9th Circuit: Alaska, Hawai’i, Washington, Oregon, California, Idaho, Nevada, Arizona and Montana. And Guam! That will go a long way toward normalizing being gay, and promoting gay marriage nationally.

    If same sex marriage was forced upon the states by the federal courts it could “go a long way toward promoting” a federal marriage amendment!

  6. Leo
    September 12th, 2011 at 09:52 | #6

    @Roivas
    Your analogy is, of course, incredibly insulting and demeaning, not only to the many millions of Californians who voted for Prop 8 and the many additional millions of Americans who have voted for similar amendments, but also to the liberal California Supreme Court which allowed the vote and upheld it after it passed. Prop 8 passed a high bar for reasonableness.

    Your argument has nothing to do with the standing issue, which is the issue at hand. If a law is arguably unconstitutional, the law should be challenged in the courts with both sides (even an odious side) having representation in the courts. Even the most depraved criminal (one who might actually pluck out eyeballs) is given a defense lawyer because the legal system depends on a robust adversarial system.

  7. Sean
    September 12th, 2011 at 16:05 | #7

    “If same sex marriage was forced upon the states by the federal courts it could “go a long way toward promoting” a federal marriage amendment!”

    Probably. But a federal constitutional amendment will never be passed. Since most Americans now support overwhelmingly legal recognition of gay couples, only the usual rightwingnut politicians would even touch it. It wouldn’t get out of Congress, let alone get passed by 38 state legislatures. The time for marriage discrimination has passed.

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