Teddy, what’s your sense of the court on this?

I wish I knew more about what to expect. My sense from the oral arguments was that, perhaps, Starr went too far in proposing that the Court MUST invalidate the marriages if they choose to uphold Prop 8. I think by linking invalidation with a vote to uphold, he might have done damage to his case. Which really seemed quite strong up to that point.

I expect Scenario Two is the most likely to be their ruling: uphold Prop 8 but leave the extant marriages alone. Of course, that will bring a challenge immediately from the right, I imagine.

Now, what is interesting is this: if the Court goes with Scenario Three, overturning Prop 8 because it’s too big a change to the constitution to be put solely to voters without a legislative path, that poses an intriguing question: can Prop 8 proponents simply go back to the ballot in the face of that ruling? Or will they need to go through the legislature — a highly unlikely route to success for the bigots?

While Prop 8 opponents will surely go back to the ballot box if it’s upheld, I’m not sure proponents will have that option, since the ruling will be based on the arguments that it’s too sweeping a change to be decided at the ballot box.

But I don’t expect that to be an option. As I said — and I have no way of knowing this except gut feeling — I bet the Court will go with Scenario Two: keep the marriages and the ban.

Well, let me first shock y’all by saying I doubt Scenario 2 is all that plausible. I think the CA Family Law Blog explains it best:

It is erroneous to assume that the Supreme Court is going to allow the estimated 18,000 California same-sex marriages to stand though there was strong indication from the Court that the marriages should be upheld after already receiving the right by the highest court of the State. The California Supreme Court Justices entertained argument on Proposition 8 being applied retroactively and questioned whether it was the intent of the voters to invalidate the same-sex marriages retroactively if Proposition 8 was upheld. Here they looked to language in the ballot stating that “marriage is between a man and a woman regardless of when or where performed,” indicating that the words “when or where” were significant and could indicate that the voters meant to ban even the marriages that have already taken place. It was argued in opposition that the language of the ballot failed to address prior marriages and is thus too vague and ambiguous to be applicable to existing marriages. There was indication from the Court however that Proposition 8 turns on the intent of the electorate rather than the drafters and the electorate by voting that marriage should be “between a man and a woman,” and that it appears to have intended to disallow same-sex marriages. In addition, the Supreme Court looked at the word “is” in the Proposition 8 initiative sentence, “Marriage is between a man and a woman,” suggesting that if the “is” is read as a present tense then past marriages may be viewed as void. The Supreme Court may also be reluctant to allow the same-sex marriages to stand because it could create such a potential legal and social quagmire for a small class of people.

There is some legal thought that the marriages may not stand if Proposition 8 is upheld but may instead be treated as putative marriages. Putative marriage is a remedial doctrine designed to protect the reasonable expectation of someone who acts in good faith on the belief that they are married and in ignorance of the existence of those facts which constituted a legal impediment to the marriage. A putative marriage may be null and void but it generally entitles a putative spouse to the rights a legal spouse would have in a divorce for, among other things, division of property for the period from the putative marriage until discovery that the marriage was invalid.

So that’s what I think is more likely. But you know what I suspect may be even more likely than either> Yeah, I’m a hopeful romantic:

The California Supreme Court may be able to avoid the issue as to the status of the same-sex marriages that have already taken place. The Court may very well produce a ruling that Proposition 8 is unconstitutional without reaching the issue of the Proposition’s effect on the same-sex marriages already legally performed. After the broadcast of the California Supreme Court hearing many in the media predicted that the Court indicated that it would uphold Proposition 8. The media may have failed to recognize that court justices at a hearing are sometimes posing questions simply to educate the public, play devil’s advocate, or they present questions posed in a declarative manner to convince other judges on the panel. This is a case where these Supreme Court justices are under a tremendous amount of personal and political pressure. The world is watching this decision that will come from a country known for equality and tolerance for all. It is ill-advised to simply look to the oral arguments themselves to make a determination of the outcome. These judges and their law clerks have read through dozens of positions advocated in amicus curie briefs from experts around the country who have laid out positions in written briefs that can be far more succinct, articulate, and compelling than the pressure cooker atmosphere of a broadcasted court hearing.
At the hearing the justices wanted to know if a “suspect class change” constitues a revision of the constitution, which may indicate an intention to overturn Proposition 8 based on a ruling that a revision occurs when the majority takes away a right that was previously considered inalienable from a suspect class. It is foreseeable that the Court will rule that the people have an inalienable right to amend the Constitution as they see fit, but a change to core constitutional guarantees of equal protection of the Constitution that would selectively deprive a disfavored suspect class of fundamental rights must be subject to the rigors of the Constitutional revision process. The Court could overturn Proposition 8 to preserve the institutional integrity of the Court and the California Constitution by refusing to allow the majority to reinstate discrimination. This Court has already ruled that same-sex couples have a right to marry. The framers of the California Constitution also recognized that the majority might seek to deny rights of a minority, which is one reason the California Constitution has a core equality principle. The Constitutional framers placed safeguards on the initiative process by requiring that changes in fundamental constitutional notions of equal protection go through a more deliberative process.
Many confuse the issues of the recent Supreme Court hearing incorrectly thinking that the court is simply deciding whether or not to ban same-sex marriages. This is far too limited an approach. Rather, this case may be decided by determining if the procedure for placing Proposition 8 on the ballot was correct. The Court in this instance is looking to determine the constitutional validity of the method of the Proposition 8 initiative measure. The Supreme Court focused on whether Proposition 8 was a revision to the State of California’s Constitution or an amendment to the Constitution. California’s Constitution permits amendment by initiative with a majority of votes, but a “revision” may only be accomplished by convening a constitutional convention upon a two-thirds vote of both houses of the Legislature and obtaining popular ratification of the proposal to call the convention or by legislative submission of a proposed revision to the voters, again upon a two-thirds vote of both houses of the Legislature. The process of revision is more formal, deliberative, and difficult. Unfortunately, the California Constitution contains no clear definitions of which types of changes require the more difficult and deliberative process.

And no, the radical right will NOT be able to go back to the ballot to reinstate H8 if it’s overturned tomorrow. All they can do is basically try to recall the judges, but that will be significantly more difficult for them than getting H8 passed.

They can’t make something that was, at the time it happened, legal, illegal, can they? Does the wording of the statute overrule established law?

So, if federal DOMA is eventually repealed, how are putative marriages treated for federal benefits purposes?

Great analysis, by the way, thanks!

doesn’t the language, “between a man and a women” also invalidate marriages that are given to people who legally minors?

I would think scenario two would create a huge equal protection problem with the federal Supreme Court. How could some gay couples be legally married and not others in the same state? Seems ugly to me, although Bush’s Supreme Court sucks real hard and wouldn’t necessarily rule in a sensible manner.

good morning all. Just wanted to express my appreciation for all of Teddy SF’s fine contributions, esp. of late. Thanks for explaining all of this to us.

I hoe for the best.

I agree. That is where I see an immediate challenge if Option 2 is decided upon.

There has to be a couple out there who wants to get married, hasn’t done so yet, and is willing to claim equal protection protection for that right. I bet there is someone planning to file for a marriage licence this afternoon with that in mind already (and more power to them).

If so, that moves this to the Federal Court and brings up DOMA too. Does the California Supreme Court want to start that ball rolling??

probably OT – Turley coming up next on MSNBC.

seconded!

thanks for the reportage and links Teddy.

color me extremely anxious

Christy’s take on his Sotomayor comments:

I’ve been reading a lot of her opinions of late — they are geared toward mechanics of law and common sense resl world application, and not toward overarching theoretical implications. So it doesn’t surprise me that Turley — whose intellect tends toward theory and larger construct — doesn’t jibe with her approach. Truly.

But having had to survive in that “real world” trial day in and day out of my former practice, I really appreciate a lot of that approach from her. And I’ll try to detail why in post over the next few days.

I’m anxious, too. Got all fingers crossed. Hope the Court shows the bigots that they are not welcome in our state.

My hope is that they throw the whole thing out! It seems crazy to me that the majority can vote the minority out of their rights as citizens. If they rule for prop 8 I say we try and get a prop passed that takes away all the rights of the Minority Republicans as they are causing economic havoc for the majority and not some make believe damage same sex marriage does to straight couples!!
Thanks for the Post Teddy… hows things up in the city?

If marriage is so sacred, why is divorce so easy?

If marriage is so sacred, why is divorce so easy? have they weaponized it ?

But having had to survive in that “real world” trial day in and day out of my former practice, I really appreciate a lot of that approach from her. And I’ll try to detail why in post over the next few days.

can’t argue with that.

Do I detect that Turley could possibly tossing out some sour grapes?

good point, cbl.

I’m going to remember that expression

If the California Supremes decide to split the baby (Option 2) they do have a serious equal protection problem on their hands. Option 2 is the sort of decision that pisses everyone off, and it’s at least suspect in legal terms.

If they decide that they are so afraid of the nutjob right’s ability to stir up the electorate that they need to affirm 8, then I think their most likely course is to rule the marriages performed during the Sacramento Spring (Teddy’s Rainbow Window) are invalid. But they will also rule in a way that holds harmless those marriages, i.e., the putative marriage.

To do otherwise violates the Federal Constitution’s prohibition on ex post facto laws. Those marriages were contracted in good faith and in accordance with California law at the time the contract was made. Declaring them null and void as the result of a Citizen Initiative that passed after the marriage was contracted amounts to the enactment of an ex post facto law.

If ex post facto laws can be enacted by citizen initiatives, then bills of attainder can also be passed by the initiative process. In that case, Californians should get busy and pass a bill of attainder against Ken Starr and all the other Reich Wing enablers.

“Cause the lawyers make lots of money from divorce.
The ABA would fight to the death to keep divorce legal and they may have to if the wingers decide they’d like to stop it.

Either way, this will generate more propositions for years to come. In CA, it’s way too easy to qualify these things for the ballot.

Well, remember that by and large, these are the same forces that are pushing the idea of covenant marriage. That is, a return to the old days when divorce could be had only for cause. Cause is generally limited to spousal abuse, infidelity, and nonsupport.

The US is a very skitzo country. On the one hand we are religious prudes, against sex in general, always attempting to regain something that never was. At the same time, advertisers use SEX to sell everything. Hotels carry porno channels, cable and sat. providers carry porno channels. The biggest markets on the internet are sex related. Yet we continue to make laws against sex of all kinds. We rate movies PG-13 when extreme violence is the theme of the movie, yet rate a movie AO if there is even any nudity. Above the table we are extreme prudes, while under the table we are extreme liberines. Honesty about sex is verbotten, while violence is fine-except in video gmes where a young person might be warped. The young today are confused because on the one hand we refuse to teach sex ed-embarrassment about sex and nudity is the biggest reason-yet children have easy access to porno movies and children as young as middle school are engaging in sex. The biggest rethug pol-palin-and advocate of not teaching sex ed, has a daughter get preggers. This is no surprise. I see the same thing here in Tx. Religious parents all say how “good” their kids are, they teach that abstinence is the only way. They have public promises with their kids-only girls,I guess that it is fine for boys to have lots of sex, but never ever girls-and the girls wear rings and promise to remain virgins until marriage. How victorian. Except of course it doesn’t work. Girls have as much desire to fool around as boys do-I say this as the father of 3 girls, one of whom had a child at the age of 15, ran away from home with the childs father, but who now, 15 years later, is a business owner and married to a very nice person who is not the childs father(who is dumb as a post)-Kids will get drugs and booze and have sex if they want too enough. Parents can not lock their children up, the only thing you can do is instill values while they are young ennough to listen. My point is that despite our extreme religious views in public, the world will do what the people want and the young people-outside of the extreme religious-don’t really mind if 2men or 2 women get married. Its not a big deal. The older generation will die out as will their views-archie bunker types-and the US will finally(maybe) find that it can catch up with the rest of the world.In Europe we have a world in which drugs are available without fear of arrest, sex and nudity are presented without shame and violence is the thing that is denied, not sex. But prudes that we are, I don’t see it happening until my generation dies out.

“Cause the lawyers make lots of money from divorce.

heh. Don’t forget the corollary:

Q – “Why are divorces so expensive?”

A – “Because they’re worth it!”

Christy has more on Sotomayor
Messaging FAIL: RNC Accidentally Releases Secret Sotomayor Talking Points

LOL and never marry TWICE !

No s***, Sherlock.

When I was in the 8th grade in California, I had to pass a State-mandated exam on the California Constitution. Given that I had started school in California from Hawaii in November of that year, I had nightmares about that test. In teaching us about the Glorious California Constitution, we were told what a marvelously Progressive document it is.

We were taught that the Initiative and Recall provisions are central to its marvelosity [sic]. Looking back, I can see that they are bugs rather than features. It’s way too easy to get an initiative on the ballot and way too easy to pass an initiative once it’s on the ballot.

If I were revising the California Constitution there are two things I’d be sure to do. First, I’d raise the valid signature requirement to a level that made it infeasible to use paid signature gatherers to qualify either an initiative or a recall. Second, I’d require a significant supermajority to pass an initiative, perhaps 3/5 of those voting. Alternatively, I’d require a majority of registered voters rather than a majority of those who showed up. That is, failure to show at the polls counts as a “Nay” vote on all propositions.

There are a bunch of other f***ups in the California Constitution that need fixing too, and most of them are the result of initiatives and interactions between initiatives.

Why would a court not invalidate something clearly defined in the constitution about equal protection? Fair is fair, law is law and people don’t get to vote to condemn their neighbor. If the court does not rule on the side of the constitution, our laws, which are severely tested now, will be proven to be meaningless.

Justice in our uneven court system is a bug, not a fixture.

20 minutes to go; I think they are going to “split the baby”.