Does California Supreme Court Justice Joyce Kennard’s Vote Yesterday a Good Sign for Proposition 8?
Posted by: Flap in California Supreme Court, Gay Marriage, Joyce Kennard
California Supreme Court Justices, from top left, Kathryn Mickle Werdegar, Carlos R. Moreno, Joyce L. Kennard, Marvin Baxter and from lower left, Ming Chin, Chief Justice Ronald M. George and Carol Corrigan
Justice Kennard would deny these petitions without prejudice to the filing in this court of an appropriate action to determine Proposition 8’s effect, if any, on the marriages of same-sex couples performed before Proposition 8’s adoption.
Justice Kennard, in fact, voted against reviewing the constitutionality of Proposition 8.
Why?
While both sides cheered the court’s decision to take up the cases, Kennard’s lone vote to deny review could spell trouble for opponents of Prop. 8.
Kennard is the court’s longest-serving justice, having been appointed in 1989, and has been one of its foremost supporters of same-sex couples’ rights. Without her vote, the May 15 ruling would have gone the other way. But she wrote Wednesday that she would favor hearing arguments only about whether Prop. 8 would invalidate the pre-election marriages, an issue that would arise only if the initiative were upheld.
“It’s always hard to read tea leaves, but I think Justice Kennard is saying that she thinks the constitutionality of Prop. 8 is so clear that it doesn’t warrant review,” said Stephen Barnett, a retired UC Berkeley law professor and longtime observer of the court.
For those seeking to overturn Prop. 8, “I would not think it would be encouraging,” said Dennis Maio, a San Francisco lawyer and former staff attorney at the court.
Flap thinks the court ultimately will support California’s voters and uphold the constitutionality of Proposition 8. Flap predicts a 6-1 vote with Justice Moreno dissenting.
Justice Kennard has sent a message to her fellow Justices yesterday that she plans to uphold Prop. 8.
Or did she?
Stay tuned……
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November 21st, 2008 at 5:32 pm
I was concerned when Justice Kennard did not join in signing the Court’s order, the most obvious interpretation of her behavior being that she believes that Prop 8 is clearly constitutional, leaving its retroactivity the only unresolved issue.
Another possibility that occurred to me is that - given that it was clear on Wednesday that Court was going to accept original jurisdiction of the Prop 8 challenges - Kennard’s solitary move may have been a hidden invitation to the opponents of Prop 8 to submit other, possibly better, arguments for immediate review. After all, the revision and separation of powers arguments aren’t the easiest to make, and there are alternatives: for example, most of the Court’s equal protection analysis of Prop 22 in the Marriage Cases in May applies equally well to Prop 8; it’s just that now we have two constitutional provisions that are in conflict with one another instead of a statute in violation of the constitution. Personally, I’d like to see the petitioners argue that Prop 8 denies inter-sexed individuals the fundamental right to marry, though I know that that could be politically dangerous.
But other interpretation of Kennard’s move make more sense. The gay couples who were married over the summer need to know as soon as possible whether their marriages are effected by Prop 8. If so, whether the effect is constitutional is a matter that may be better developed after years of review in the lower courts, during which time the voters would have the opportunity to repeal Prop 8. As such, Kennard’s move may indicate something more like deference to the value of the judicial process than it does deference to the will of the voters. See for discussion.
Indeed, I doubt that Justice Kennard would have voted in favor of applying Prop 8 retroactively, and so, had she had her way, the Court would have created a situation in which some gay marriages were legal and some were not - a situation that, over time, would most likely result in political pressure to legalize gay marriage - or just marriage - for everyone.
November 22nd, 2008 at 4:21 pm
[...] However, Flap does not think the California Supreme Court will throw out the California voters’ wishes. We received an indication of this the other day by Justice Kennard’s actions. [...]