Legal Pad

Prop 8 Stands, But What About The 18K Marriages?

The 18,000 couples who married while gay marriage was legal in California — they got it all.

At least that’s the view of three UC-Berkeley law professors we called for insight into today’s Supreme Court ruling on Prop 8.

“There is absolutely no distinction in the law’s eyes between those gay married couples and heterosexual married couples,” constitutional law scholar Jesse Choper said. “They have exactly the same rights,” he said, at least under California law.

That’s a “bittersweet outcome,” at best … after the jump.

Prop 8 Reaction From Lawyers and Academics

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:

Supremes Uphold Prop 8

Stuart Gaffney and John Lewis, original petitioners in the challenge to Prop 8, await the ruling at the Supreme Court building on Tuesday. More photos after the jump.

The big legal news of the day has just hit the fan.  We hear it's a madhouse down at the court building in Civic Center right now.  You'll notice our Twitter feed to the left has Recorder Editor in Chief Scott Graham tweeting his way through the opinion.  The court's website is absolutely mobbed right now, so for those wanting to get their hands on the actual opinion, here's our copy (S168047.pdf).

Your handy guide to our coverage:

• Our boss Twittered the heck out of the Harry Potter-length ruling, starting around 10 am.
• Supreme Court specialist Mike McKee's story is online.
• We've posted outtakes from lawyers and academics' blog reactions.
• We also talked with a trio of Boalt Hall professors about the 18,000 gay couples married before Prop 8.
• Oh, and adding insult to the marriage-equality camp's injury, the top "Yes on 8" lawyer is running for the Assembly.

Meanwhile, our inboxes are being choked with press releases from groups on both side of same-sex marriage. Sample the buffet, after the jump.

Brace Yourselves: Prop 8 Ruling Drops on Tuesday

Update:  Oh, it's dropped, baby.  It's dropped.  Start here.

Enjoy your weekend. All hell’s gonna break lose on Tuesday.

The California Supreme Court announced today that in four days it will release its much-anticipated ruling on the constitutionality of Proposition 8, the controversial November ballot initiative that outlawed same-sex marriage. If the court upholds Prop 8, it will also have to decide whether the 18,000 gay marriages conducted between June and November will stand.

Based on oral arguments on March 5, we predict that Prop 8 will be affirmed by the court by a 5-2 vote, but that the marriages performed in the interim will be declared valid. But some predict that the high court could do something unpredictable, such as uphold Prop 8, while ordering the state Legislature to end marriage as we know it and allow only civil unions. That would leave the term “marriage” to churches.

All eyes on Moreno, after the jump.

Iowa's Same-Sex Marriage Ruling (heart)s California's

While a slim majority of Californians disliked last year’s state Supreme Court ruling that legalized same-sex marriage enough to obviate it with Prop 8, other states’ high courts hold it in reverence.

Today, the Iowa Supreme Court cited In re Marriage Cases — 43 Cal.4th 757 to us and 183 P.3d 384 to the justices in Des Moines — eight times in unanimously declaring (.pdf) same-sex marriage legal in that Midwestern state.

Imitation: The sincerest form of flattery (other than having voters not do a ballot-box end run), after the jump.

AG's Prop 8 Man Calls it Quits

The attorney who led Jerry Brown’s efforts to overturn Proposition 8 is swapping government shops.

Senior Assistant Attorney General Christopher Krueger is taking a new job as chief deputy legal affairs secretary in Gov. Arnold Schwarzenegger’s administration, a spokeswoman for the governor confirmed. He starts Wednesday and will replace Louis Mauro, who was appointed to the Sacramento County Superior Court bench by Schwarzenegger last week.

Krueger said the move has been in the works for weeks and that top brass at the AG’s office knew about it.

“The timing of my departure was driven by the timing of Mr. Mauro's appointment,” Krueger said in an email. “I informed the Governor's Office of my interest in replacing Mr. Mauro sometime last fall. I waited to announce my departure from this office until Thursday [March 26] because I was waiting for Mr. Mauro's appointment to be announced first.”

Remember that time Jerry threw him under a bus? Good times, after the jump.

Jerry Brown on Prop 8 Arguments: 'A-Whoops.'

Speaking by phone to Proposition 8 opponents Monday night, Attorney General Jerry Brown offered a rather blunt assessment of his office’s performance during the recent Supreme Court hearing on the gay-marriage ban.

“Our presentation wasn’t all that I wanted,” Brown said in a teleconference arranged by Courage Campaign, a left-leaning online political network. “I must say I had thought about making the argument myself. But the tradition is that the lawyers in the government section do this and they’re the ones — boy, they worked hard. They really practiced.”

Senior Assistant Attorney General Christopher Krueger, as you might remember, had a tough time selling the justices on the argument that Prop 8 wasn’t a constitutional revision but rather an improper infringement of an inalienable right.

“Boy, when I saw the judges there, they certainly were on the attack, and our man didn’t fight back as well as I would want,” Brown told the teleconference listeners.

JB, not pulling punches, post-jump:

Justices Sound Ready to Uphold Prop 8

Same-sex marriage is history in California, at least for now. This morning California Supreme Court justices hinted strongly that they will uphold Proposition 8, the November ballot initiative limiting marriage to heterosexual couples.

The only bright spot for gay marriage advocates during the three hours and 15 minutes of argument came when the justices indicated that marriages held after last spring's In re Marriage Cases ruling but before the November vote would retain the force of law.

Chief Justice Ronald George, who became a hero to gay couples by authoring Marriage Cases last year, made very clear that the voters will have the last word, even when it involves what he described as "so-called inalienable rights." George said Prop 8 proponents' argument is "more political than legal" and suggested they return to the ballot box.

Justice Joyce Kennard, also part of the Marriage Cases majority, flatly took exception to the argument that Prop 8 "destroys equal protection," saying it made only a "limited exception" in the case of marriage. She and George repeatedly emphasized that the other protections afforded gays by Marriage Cases will remain, with Kennard going so far as to ask Shannon Minter, of the National Center for Lesbian Rights, why he felt that "the sky has fallen in."

Meanwhile, Marriage Cases dissenters Marvin Baxter, Ming Chin and Carol Corrigan sounded at ease and self-confident, in sharp contrast to their frustrated tone at argument last year. The only time they became aroused was when Pepperdine law school dean Kenneth Starr, representing Prop 8 proponents, said "the flinty reality" of Prop 8 is that marriages already performed no longer have the force of law.

Baxter, Chin and Corrigan all suggested that those couples reasonably relied on the court's Marriage Cases decision, despite Starr's claim of a "swirl of uncertainty" surrounding the ruling last summer.

We will have a full report later today at our sister site, www.callaw.com.

—  Scott Graham

Justices Not Buying Challenge to Prop 8

A little more than half way through the Prop 8 arguments, and it appears the challenge by the city of S.F. and same-sex couples is going down in flames. All of the justices, especially Chief Justice Ronald George, sound highly skeptical that Prop 8 was an illegal revision of the California Constitution. At this point it looks and sounds like Prop 8 will stand but the marriages already performed may be spared.

You can follow our Twitter updates for the remainder of the argument.

— Scott Graham

Before This Morning's Prop 8 Arguments, Outside Court (Photos)

GETTING READY: City Attorney Dennis Herrera, left, before a 7:30 a.m. press conference at City Hall. Behind him is Kate Kendell of the National Center for Lesbian Rights.

WALKING TALL: Civil rights attorney Gloria Allred, center, heading to court. On the left is the couple she represented in California's same-sex marriage litigation; they and the couple on the right are parties in today's Prop 8 litigation.

FACING OFF: Protestors on both sides gathered across the street from the California Supreme Court before arguments this morning.

** TWITTERING THE ARGUMENTS: If you're on Legal Pad (legalpad.typepad.com) right now, you can follow our Twitter feed of the arguments in the upper left corner of the blog.

—  Photos by Jason Doiy