From Eugene Volokh:
Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people's views prevail over the Justices'. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people's supposed legal inability to alter supposedly "fundamental" or "inalienable" rights. On the other side, there was able briefing to the contrary, plus Justice Moreno's partial dissent [...]. Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions."
From Rick Hasen's Election Law Blog:
"It is notable that the Court writes as if in a dialog with the people (this is most evident in Justice Kennard's concurrence). The sense I get is that the court expects its initial position upholding gay marriage to be vindicated, soon enough, by the people at the ballot box."
From family practitioner Deborah Wald:
"And now, the $64,000 question:
What about marriages entered into by same-sex couples outside of California??? [...] If a Massachusetts same-sex couple, married in Massachusetts prior to adoption of Proposition 8, came to California for vacation last summer and went around telling everyone here they were married, was their marriage 'formally recognized in California'?? "
From Bill Araiza on PrawfsBlawg:
"One interesting issue popped up relatively early in the opinion: the possibility [...] that a ruling in favor of Prop. 8 left some room for an advocate to argue that the only way to comply with both Prop. 8 and the constitutional analysis in the Marriage Cases was to deny the status of marriage to everyone. [...] Are there any clues about how the court might resolve that argument? Justice Werdegar, in her concurrence, wrote, after noting the strict scrutiny requirement that remains in effect after today, that 'all three branches of state government continue to have the duty . . . today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception.' (p. 9) (italics added) She then drops a footnote that says in part that in the Marriage Cases the court 'explained how the assignment of a name other than 'marriage' to same-sex unions creates the perception of second-class status, perpetuates disparagement based on sexual orientation, poses practical difficulties for same-sex couples and their children, and threatens privacy.' (pp.9-10, fn.8) She concludes the text of her opinion as follows: 'For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.' (p.10) Of course hers is just a concurrence, but, combined with the majority's language there's at least room for litigation."
(Your guide to our coverage of the Prop 8 decision is here.)
— Scott Graham
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