California Supreme Court Decision Day on Tuesday

[Holmes]

I was originally gonna post this in the gay marriage thread with all of my other musings on the subject but I realize that this isn't about marriage. It's about whether a small majority of voters can remove a constitutional right of any minority group(and if doing so constitutes a revision rather than an amendment of the California Constitution).

Anyway, it's four days away, so anyone wanna predict what'll happen?

Right now I'm actually about 60-40 that they'll overturn this. Chief Justic George, with Werdeger and Moreno should vote to overturn this. Corrigan, Chin, and Baxter will probably vote to uphold. No surprises. Everyone says the swing vote is Kennard, mostly because of her tough questions during the hearings(then again she gave tough questions to both sides and I heard that she never shuts up during hearings). She's the one to watch.

But I think she'll vote to overturn this. When Gavin Newsom was handing out marriage licenses in 2004, and the Supreme Court later nullified those marriages, who was the justices fighting to allow those marriages? Kennard. And last year, not only did she sign onto Chief Justice George's opinion that the marriages should be performed in California and that they shouldn't be subject to public vote, she wrote a seperate opinion:

You must be logged in to read this quote.

(Whether you agree with her opinion or not is another debate, but yeah)

So, that's what I think. 4-3 to overturn, same as In re Marriage Cases last year. If Kennard doesn't vote the way I'm really expecting her to, I'd be shocked because she would be going against what she stood for and has been expressing in the past decade. This is the Court that has said that it is the final interpreters of the state constitution. I'm holding my breath.

Regardless of what happens, this decision will sure set a big precedent.

[Associate Justice PiT]

     I remember reading something on the Huffington Post that suggested that there wasn't much chance of it being overturned. I could look for it.

     EDIT: Found it.

[Holmes]

Willy nilly disregard the will of the people? The Supreme Court's job is not to give into the will of a majority. They exist purely to be above the majority in protecting minorities and being the final institution that interprets the state constitution in regard to these sort of cases.

[Nhoj]

what are the chances of the court saying the marriages that were preformed are still legal but prop 8 still stands for everyone else?

[Associate Justice PiT]

what are the chances of the court saying the marriages that were preformed are still legal but prop 8 still stands for everyone else?

     100%. There is absolutely no legal basis for invalidating the marriages that already occurred & the article I posted a link to says that they basically thought as much.

[A18]

The language you quote has nothing to do with the issue in this case. That issue is not whether the California Supreme Court has the "final word" on the meaning of the California constitution; but the extent to which the people are free to alter its content.

[Verily]

The language you quote has nothing to do with the issue in this case. That issue is not whether the California Supreme Court has the "final word" on the meaning of the California constitution; but the extent to which the people are free to alter its content.

I hope they answer that question with "none at all" and annul every Proposition in the history of California, nine-tenths of which have been horrible ideas.

[Torie]

The buzz after the oral argument was that the referendum to deny gays the use of the term "marriage" would be upheld, as it should be. This should be won at the ballot box, and that is what will give it legitimacy, and that will happen sooner rather than later. Change is in the air. Let freedom ring, to use a tired old cliche, that still has meaning - at least to me.

[○∙◄☻¥tπ[╪AV┼cVê└]

The language you quote has nothing to do with the issue in this case. That issue is not whether the California Supreme Court has the "final word" on the meaning of the California constitution; but the extent to which the people are free to alter its content.

I hope they answer that question with "none at all" and annul every Proposition in the history of California, nine-tenths of which have been horrible ideas.

That would be hilarious. Here's 3 Props that conservatives would be really unhappy about getting annuled.

2008 Prop. 8 to ban gay marriage
1978 Prop. 13 anti property tax
1930s 2/3rds budget rule

[Queen Mum Inks.LWC]

I don't see how you can legally overturn a Constitutional Amedment.

[Landslide Lyndon]

I don't see how you can legally overturn a Constitutional Amedment.

And what if a 51% majority decides to ban free speech for example?
Or if they decide to ban Mormonism or some other religion?

[Associate Justice PiT]

I don't see how you can legally overturn a Constitutional Amedment.

     By ruling that it was not a valid Constitutional amendment.

[Holmes]

I don't see how you can legally overturn a Constitutional Amedment.

The court has done it before in the past. It all depends on how they define "revision" and "amendment". If you read the In re Marriage Cases opinion, they seemed very skeptical on allowing the majority to vote on such an issue.

[Verily]

I don't see how you can legally overturn a Constitutional Amedment.

It's happened before. It doesn't have to do with the validity of the text itself, but rather how it was presented to voters. There are, in law, two layers of "amendments" to the California constitution. It's all very complicated and ridiculous, which is why Propositions should be abolished,

[Padfoot]

The buzz after the oral argument was that the referendum to deny gays the use of the term "marriage" would be upheld, as it should be. This should be won at the ballot box, and that is what will give it legitimacy, and that will happen sooner rather than later. Change is in the air. Let freedom ring, to use a tired old cliche, that still has meaning - at least to me.

So I assume you think blacks should have waited for the ballot box to grant them the rights they deserved in order to ensure their "legitimacy?"  What a load of crap.  One of the purposes of the court is to uphold the rights of minorities even in the face of majority opposition.  Gays and lesbians shouldn't have to wait for "the majority" to put an end to discriminatory laws such as Prop 8.  If they are being denied their basic rights then it is the job of the court to restore them regardless of what "the majority" thinks.

[True Federalist (진정한 연방 주의자)]

It's about whether a small majority of voters can remove a constitutional right of any minority group(and if doing so constitutes a revision rather than an amendment of the California Constitution).

Better a small majority of voters than a narrow 4-3 majority of judges to decide this or any other subjective issue.

One of the purposes of the court is to uphold the rights of minorities even in the face of majority opposition.

That assumes that state recognition of a same-gender relationship as a "marriage" and not by some other name rises to the level of a right.  I don't see how what something is called can ever be considered a rights issue.

[Holmes]

So you're saying that Court decisions in which the votes are "narrow" should be up for scrutiny? The Justices understand the Constitution and the law. To say the rights of minority groups are better in the hands of registered voters rather than people who interpret the constitution as their job is ridiculous.

And yeah, last year, they decided that same-sex couples can get their relationships recognized by the state under the name "marriage", because it is a right of every citizen in the state of California, and any effort to remove that right would be up for scrutiny. That was In re Marriage Cases in a nutshell. I'm not expecting them to change their opinion, regardless of what 52% of California voters think.

[Marokai Backbeat]

I agree with Ernest, we should have ended segregation and allowed mixed marries marriages legislatively. I'm sure we'd have most of the US covered by now, right?

[A18]

In effect, we may well have ended desegregation legislatively. It would seem that very little desegregation actually occurred between Brown and congressional intervention. Gerald N. Rosenberg, The Hollow Hope 433 (2d ed. 2008). On this view, the courts need the backing of the political branches to effectively implement a social agenda. I'll admit that I haven't carefully considered the issue; And certainly, Brown may have helped get the civil rights movement off the ground. But to ignore Rosenberg's thesis altogether is indefensible.

Anyway, the issue here is not whether the California Supreme Court's interpretation of the California constitution was right or wrong. It's the extent to which the California constitution may be altered by initiative.

[True Federalist (진정한 연방 주의자)]

So you're saying that Court decisions in which the votes are "narrow" should be up for scrutiny? The Justices understand the Constitution and the law. To say the rights of minority groups are better in the hands of registered voters rather than people who interpret the constitution as their job is ridiculous.

And yeah, last year, they decided that same-sex couples can get their relationships recognized by the state under the name "marriage", because it is a right of every citizen in the state of California, and any effort to remove that right would be up for scrutiny. That was In re Marriage Cases in a nutshell. I'm not expecting them to change their opinion, regardless of what 52% of California voters think.

No. I'm saying there is no reason to think that the 3 dissenting justices were any less diligent in applying the California Constitution than the 4 who chose to overturn the existing law.  In general, when it comes to overriding a law passed either by a legislature or by a referendum process, in those jurisdictions that have them, I favor requiring a supermajority to declare laws unconstitutional.  (for example, 5-2 or 4-2 on the California Court; 6-3 or 5-3 on the Supreme Court)  A court that acts on political issues such as this in a manner that denies the people the ability to decide them for themselves is in the long run corrosive to the value of democracy that is essential to the continuing existence of a republic and the rule of law that is essential to any form of stable government.  The long term maintenance and popular support of our little-r republican form of government is far more important that having judges try to ram down the throats of the electorate social changes that they are not yet ready for.

I think the following quote from Justice Corrigan's dissent to In re Marriage Cases says it best.

You must be logged in to read this quote.

(emphasis added)

[Holmes]

Ernest, Californians know for a fact that anything that requires "supermajorities" is bad. Try passing a budget in the state.

I don't really follow Supreme Courts, but I would disagree with the supermajority rule you talked about. How often are decisions usually decided with supermajorities anyway? Every Justice interprets the law and the constitution differently. It'd cause a gridlock if supermajorities were required and nothing would change, in my opinion. Unless that's what you would prefer.

In regards to Justice Corrigan's dissent, if she is really against "imposing" anything, perhaps she's in the wrong line of business. If Massachussets never "imposed" same-sex marriage, it probably would not have become so commonplace and accepted in that corner of the country.


For what it's worth... the courts overturning it just jumped to 79.9 on Intrade. I would've bought some when it was low.

[True Federalist (진정한 연방 주의자)]

Ernest, Californians know for a fact that anything that requires "supermajorities" is bad. Try passing a budget in the state.

Budgets (and tax rates) aren't (or at least shouldn't be) constitutional issues.

You must be logged in to read this quote.

I do prefer judicial supermajorities precisely because they help bring about stability in the law.

As for decisions decided by supermajorities, how about the unanimous Loving v. Virginia, the unanimous Brown v. Board of Education, the 7-2 Griswold v. Connecticut, or even the 7-2 Roe v. Wade.  Supermajorities have  hardly been rare.

You must be logged in to read this quote.

No she's in the right line.  If she wants to impose laws, she should be a legislator, not a judge.