California Supreme Court

California Supreme Court Appears to Be Ready to Uphold Constitutionality of Proposition 8

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Shannon Minter, standing, speaks to the California Supreme Court in San Francisco, Thursday, March 5, 2009 on the constitutionality of the state’s voter-approved Proposition 8 that bans gay unions. The court will decide whether to uphold the same-sex marriage ban and whether same-sex couple marriages will remain valid

Flap watched the oral arguments before the California Supreme Court on the challenge to California Proposition 8 which was approved by California voters last November. Proposition 8 restored the traditional definition of marriage (one man and one woman) in the California Constitution.

It is my sense (and others too) that the California Supremes will acquiese to the vote of the people on making traditional marriage (one man and one woman) the law of California since the election. However, the validity of prevous gay marriages (allowed by last year’s California Supreme Court ruling on Proposition 22) may be upheld in some way.

The California Supreme Court appeared ready today to vote to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed ready to decide unanimously to recognize existing same-sex marriages.

During a three-hour televised hearing in San Francisco, only two of the court’s seven justices indicated a possible readiness to overturn the initiative. Chief Justice Ronald M. George noted that the court was following a different Constitution when it approved gay marriage last May.

“Today we have a different state Constitution,” he said.

Justice Joyce L. Kennard, who usually votes in favor of gay rights, voted against accepting the revision challenge to Proposition 8 but said she would hear arguments over the validity of existing same-sex marriages.

Kennard said during the hearing that “Prop. 8 did not take away the whole bundle of rights that this court articulated in the marriage case.”

She said that “a very important holding” – giving sexual orientation the same constitutional status as race or gender – was not changed.
“Is it still your view that the sky has fallen and gays and lesbians are left with nothing?” she asked gay rights lawyers?

Kennard told them they also had the right to return to voters with their own initiative.

So, how will the vote break down in the court?

Gay Marriage

Justices supporting the overturn of the original gay marriage ban (May 2008) are:

  • Chief Justice Ronald George
  • Justice Kathryn Mickle Werdegar
  • Justice Joyce L. Kennard
  • Justice Carlos R. Moreno

Chief Justice George and Justice Moreno stand for reconfirmation to another twelve year term of office in November 2010.

Justices dissenting from the original decision to end the gay marriage ban are:

  • Justice Marvin Baxter
  • Justice Carol Corrigan
  • Justice Ming Chin

Flap will stay with his previous opinion:

Flap can count as well.  Three California Supreme Court Justices that opposed gay marriage plus Justice Kennard (who refused to sign the order and voted to deny the petitions) equals four votes upholding the Proposition and the traditional definition of marriage.

Flap bets the final vote will be 6-1 with Moreno dissenting to uphold Proposition 8 simply because a MORON would have to rule this is a revision of the Constitution and not an amendment.

The decision by the California supreme court is due within 90 days. Want to bet the Court releases its opinion on Friday prior to the Memorial Day weekend?


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California Supreme Court

Does California Supreme Court Justice Joyce Kennard’s Vote Yesterday a Good Sign for Proposition 8?

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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

In yesterday’s post about the California Supreme Court accepting California’s Proposition 8 that restored the traditional definition of marriage (one man and one woman) to the California Constitution for review, Flap briefly mentioned the fact that Justice Kennard did NOT sign the order.

From the order:

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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