Viewing guide for Prop 8 oral argument

by on March 4, 2009  •  In Marriage

As most readers of this blog probably know, the oral argument in the challenge to Prop 8 will be tomorrow – Thursday, March 5 – from 9 am to noon PST, and will be webcast live. If you, like me, don't have a three-hour chunk of free viewing time, you can watch it later at your leisure.

The arguments should be a fascinating debate about constitutional principles and priorities. However obscured in the peculiarities of California law distinguishing between amendments and revisions to the state constitution, the central issue for the court will be whether a commitment to protect the key liberties of unpopular minorities against majoritarian rule will trump the state's tradition of fostering populist constitutionalism through its easily accessible amendment process. IMHO, these are more difficult and more interesting questions than those raised in the underlying debate about same-sex marriage.

Fascinating substance aside, the outcome will turn on a pretty simple numbers game: which side will get to four in counting the justices it can persuade.  Last year's decision granting marriage equality to gay couples was decided by a 4-3 majority.  It's presumably a safe bet that the three who dissented will vote to uphold Prop 8.  So the current case will be won or lost depending on whether the opponents of Prop 8 can hold all four of the justices they persuaded last year: Chief Justice George and Justices Kennard, Moreno, and Werdegar.

Especially in the spotlight will be Justice Kennard, who voted with the majority last year, but who also voted against hearing the petition of the Prop 8 opponents. No one knows whether the latter vote was motivated by a belief that the adoption of Prop 8 was so clearly valid that there was no point in hearing the case or by a belief that the challenge should have been filed first in the lower courts, rather than originally in the state supreme court.

UPDATE: The San Francisco Chronicle agrees, says to watch George and Kennard.

So, since there will (thankfully) be no color commentary by pundits to help us keep score while watching which justice says what during the argument, here is a visual guide to the players:


Left to right (their votes last year, either Majority or Dissent):


Predicting how a judge will vote by the kinds of questions he or she asks during oral argument is often a fool's errand, but that won't stop anyone from trying. I will cheerfully predict that both sides will proclaim themselves extremely happy with how the argument went, and will say many nice things about how intelligent the justices are.

And then there is nothing to do but wait until the justices decide, a period of time which this court – unlike the great majority of courts – has capped by giving itself a deadline of three months to decide every case it hears.  So more or less by Memorial Day, this battle will be over.


5 Responses to Viewing guide for Prop 8 oral argument

  1. Mad Professah March 4, 2009 at 12:02 PM

    What do you think about the LA TIMES story which says that the Court may reveal what its ruling will be during oral arguments tomorrow?

    link to

    I think its bullsh*t.

  2. John Bisceglia March 4, 2009 at 12:04 PM

    That’s OK that gays “need the votes” to “earn” our due civil rights.

    Just don’t expect any of us to comply with the government in any way until we are treated THE SAME.

    Jury Duty? F*CK YOU.
    I.R.S. and taxes? F*CK YOU.

    Let the heterosexuals take responsibility for THEIR precious government. I’d like to see someone find ONE SINGLE HETEROSEXUAL that would tolerate “waiting” for government to decide whether or not THEIR family deserve legal rights and protections.
    [equality tax revolt]

  3. Nan Hunter March 4, 2009 at 1:42 PM

    The LA Times article means nothing more than what we already know – sometimes a judge’s questions seem one-sided, but most of the time they try to ask tough questions of both sides.

  4. Timothy Swint March 4, 2009 at 4:47 PM

    I watched the arguments last year to overturn prop 22. Based on the individual jurists questions I thought we had no chance in hell for a favorable ruling. I think they actually go out of their way to look harder on the side they are actually agreeing with so as to not appear to show their cards. Just a thought.

    San Diego

  5. Chairm March 5, 2009 at 9:11 AM

    John Bisceglia, the marriage amendment does not permit polygamy. If polygamists are typically heterosexual people, then, they are waiting, too.

    Marriage is a public relationship. There is no absolute right to marry. The rules for eligibility are drawn around the core meaning of the social institution that society, through government, benefits from and so benefits in return.

    I hope one of the judges will ask the ani-8 lawyers, during their allotted 120 minutes, What is the core meaning of gay union?

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