Re Prop 8 and the Kennard move....

In my prior posting about Justice Kennard's failure to sign the California Supreme Court's order taking jurisdiction in the Prop 8 litigation and setting an expedited briefing schedule, I wonder what this meant.  Justice Kennard was part of the 4-3 majority in the Marriage Cases decision from May 15, and I was concerned that without her vote it would be difficult to prevail here.

I speculated that either she did not see much merit in the petitions, or that she was unhappy with the form in which the matter was presented.

A long-time observer of the court has now told me to set aside my fears.  Not that anyone knows how any judge will vote on the merits of the case, but, my source tells me, Justice Kennard has a long-standing objection to the court by-passing the normal litigation process in which a case percolates through the state court system and then ends up before the Supreme Court.  She believes the entire process works better when the parties have had more time to develop their written and oral arguments, to test them out before a trial judge and an intermediate appellate court, and then finally to go up to the Supreme Court with a fully developed approach to the issues.  So it is more likely than not that she did not sign the order because she disagreed with the expedited handling and thought the challengers should be starting in the Superior Court to argue their challenge.

My knowledgeable court-watcher also observed that the question about separation of powers was of particular interest to Chief Justice George, who has devoted a lot of attention to this issue, and it may be the point about the petitions that has particularly caught his interest.  Once again, there is no way of knowing how the court will decide this on the merits, but it is possible that if George is again in the majority, the separation of powers point could emerge as the key point - that is, the idea that allowing this kind of initiative amendment intrudes upon the court's essential role as a guardian of minority rights through the equality guarantees of the constitution.   In this sense, an amendment that carves out an exception to the equality guarantee is really a "revision" of the constitution vision of equality that is one of the fundamental animating principles of the document.

This is, of course, the opinion of one observer, and other observers of the court and these justices might well disagree, but I felt some degree of comfort hearing this from somebody who is very analytical and pragmatic in evaluating what is going on.

Comments

[Richard]

This makes me feel much better. I was incredibly concerned based on your last post. Thanks for the follow up, and thanks to your source!

[Joe]

Thank you for sharing your source's insights, Prof. Leonard.

I, too, was concerned when Justice Kennard did not join in signing the Court's order, the most obvious interpretation of her behavior being that she believes that Prop 8 is clearly constitutional, leaving its retroactivity the only unresolved issue.

It occurred to me that Kennard's solitary move may have been a hidden invitation to the opponents of Prop 8 to submit other, possibly better, arguments against the proposition. After all, the revision and separation of powers arguments aren't the easiest to make, and there are alternatives: for example, most of the Court's equal protection analysis of Prop 22 in the Marriage Cases applies equally well to Prop 8; it's just that now we have two constitutional provisions that are in conflict with one another instead of a statute in violation of the constitution. Personally, I'd like to see the petitioners argue that Prop 8 denies inter-sexed individuals the fundamental right to marry, though I know that that could be politically dangerous.

But your source's interpretation of Kennard's move makes more sense. The gay couples who were married over the summer need to know as soon as possible whether their marriages are effected by Prop 8. If so, whether the effect is constitutional is a matter that may be better developed after years of review in the lower courts, during which time the voters would have the opportunity to repeal Prop 8.

Indeed, I doubt that Justice Kennard would have voted in favor of applying Prop 8 retroactively, and so, had she had her way, the Court would have created a situation in which some gay marriages were legal and some were not - a situation that, over time, would most likely result in political pressure to legalize gay marriage - or just marriage - for everyone.

[Art Leonard]

I don't want to communicate undue optimism here, but just to temper the alarm signalled by my earlier post. My source persuaded me that, although Justice Kennard's position on the merits is not really predictable, it would probably be wrong to attribute her vote to a conclusion that she rejects the petitioners' arguments out of hand.

In further conversations with colleagues, another point came out: that the questions presented to the court in this case do not necessarily produce the same division of the court that we saw in the Marriage Cases. Somebody who thought that Prop 22 violated the constitution would not necessarily see that Prop 8 also violated the constitution, as different questions of interpretation and application are involved. One could take a principled position against the validity of Prop 8 without being a proponent of same-sex marriage, since the questions presented are somewhat different: whether Prop 8 produced an unacceptable distortion in the balance of separation of powers struck by the state in its constitution, or whether the people may, through an initiative amendment, essentially redefine the fundamental right of equal protection of the law by "carving out" the application of the equality concept in the case of one minority group (a group labelled by the court as defined by a suspect classification)with respect to one particular issue - the right to marry. One need not believe that gay people have a right to marry or should have one in order to believe that the initiative reorders the balance of power between governmental branches.

[Progress]

There is another story on this issue on the LA Times website tonight. The latest take is that because Kennard did not indicate that her declining to take the cases was "without prejudice", (only the ability to introduce the current marriages matter was without prejudice) that this means she most likley was not swayed by the challeges. Any thoughts?

[ALeonard]

At this point, I think further speculation about why Kennard voted the way she did is pointless. The advocates have to work on persuading her, and the rest of the court, that Prop 8 is a revision. If they can do that, Prop 8 goes down; if not, it remains in effect.

I was reassured by the friend who firmly believes that Kennard's vote was entirely about her objection to expedited review of serious constitutional questions, and not about the merits. Now it's time to look forward....