After listening to the arguments in the cases challenging Proposition 8 as an invalid enactment of the people — for one reason or another — it appears that there will not be a majority of the Court willing to strike down Proposition 8. Both Chief Justice George and Justice Kennard — in the majority holding last year that there was a constitutional right for same-sex couples to marry — expressed great concerns about invalidating the will of the people on this matter.
Justice Kennard repeatedly admonished counsel for petitioners that this is a far different case from the Marriage Cases. Justice Kennard, however, also was the leading questioner asking about retroactivity — a point on which even Ken Starr, arguing for Proposition 8’s validity for the Campaign for California Families, conceded he was not making much ground. Justice Corrigan, who dissented in the Marriage Cases, also seemed particularly troubled by the argument that the people of California, by Starr’s argument, would be unable to reasonably rely upon an opinion of the Supreme Court of the State as a pronouncement of the state’s law.
In sum, it would appear that the most likely result is that the Court will hold that Proposition 8 constitutes a valid amendment because it did not alter the governing structure of the state, but that those couples who relied on the Supreme Court’s ruling in the Marriage Cases and got married prior to the passage of Proposition 8 will, at least as a matter of equity, continue to have their marriages recognized in California.
A great job was done by all of the counsel for the Petitioners, but I wanted to point out the amazing advocacy done by Shannon Minter of the National Center for Lesbian Rights — who argued beautifully, “Popular sovereignty is legitimate only under conditions of formal equality.” — and Therese M. Stewart, who argued for the City and County of San Francisco.
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