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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