Trial Of The Century

by dday

Here in California, the big story of the day is the Prop. 8 hearing in the California Supreme Court. It starts at 9AM ET, and you can actually watch it at the California Channel. Large groups of activists will be watching the trial throughout the state, and last night there were a series of candlelight vigils.

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

This is less a hearing about the Constitutional validity of a ban on gay marriage itself and more about these questions. However, the first question essentially asserts that the state Constitution cannot be amended to strip away fundamental rights (and essentially contradict another part of that Constitution). Brian Devine has a must-read on the legal issues involved at Calitics. And Attorney General Jerry Brown is arguing that the proposition should be thrown out.

Incidentally, on the side of allowing discrimination today, arguing for the measure’s backers, is none other than Ken Starr.

Based on the way that the California Supreme Court works, it is likely that an opinion has already been formed.

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.

Chief Justice Ronald M. George, who wrote the historic May 15, 2008, decision that gave same-sex couples the right to marry, will be the one to watch during the hearing because he is often in the majority and usually writes the rulings in the most controversial cases […]

Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May’s 4-3 marriage ruling said the decision should be left to the voters.

One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than “marriage” and apply it to all couples, gay and straight.

This is not the end of the fight for marriage equality, but just another marker along the road. Our Supreme Court judges here go through elections every ten years (remember that when you hear about “unelected judges”), so there are likely to be recall campaigns. And more ballot initiatives. And this is just one state in the union.

Let’s hope for the wisdom of those sitting on the bench to understand the implications of a simple majority taking away the rights of a whole class of citizens.

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