I’m out of the business of predicting with confidence what the California Supreme Court will do based on its oral arguments. So I’ll predict without confidence that: (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California.
It seemed to me that Chief Justice George and (especially) Justice Kennard, both in the 4-justice majority in last May’s marriage decision, were quite skeptical of the argument that Prop 8 was a revision requiring prior legislative approval. Maybe they were being devil’s advocates. But losing those two votes, if they’ve been lost, probably means losing on the challenge to Prop 8.
In principle, the justices’ votes on whether there is a right to same-sex marriage and on whether a proposition repealing that right is an amendment, are independent questions. A judge could believe there’s a fundamental right to same-sex marriage but that the state constitution liberally allows amendments by simple majority votes. On the other hand, a judge could believe there’s no fundamental right to same-sex marriage, but think that once the right is recognized, the elimination of a fundamental right for a suspect class is such a monumental act, and is fraught with so many dangers if allowed to stand as a precedent, that it can be accomplished only by revision.
The main hope, such as it remains, for opponents of Prop 8 lies in the recognition of several justices today, including at least one who dissented from last May’s decision (Corrigan), that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision. Dean Starr agreed the “precise issue has not been before this Court.” As I wrote in response to one commenter yesterday:
I don't think the question is so much whether the precedents "support" the petitioners as it is whether the precedents even address a case like Prop 8. There's never been an amendment in California or elsewhere that (1) stripped a judicially declared "fundamental right" (a term of art that doesn't just mean things that are important to people) from (2) a judicially-protected suspect class (another term of art that doesn't just mean any political minority). There have been other anti-SSM amendments, of course, but never in the teeth of a judicial decision the other way on these points. . . .
It's not true that only quantitatively large changes have been held to be revisions, and the petitioners make no quantitative claim here. Qualitatively significant changes can be revisions, as well. . . .
The question next would be: have the past cases closed and finally defined the set of "qualitative" constitutional changes that should be routed through the more deliberative, laborious, and consensus-dependent revision process? If there's a case to be made that the set isn't closed, it's hard to imagine a stronger candidate than one in which a suspect class loses a fundamental right on the say-so of 52% of the population. . . .
If the California Supreme Court rules in favor of Prop 8, it seems to me it will need to do one of two things: (1) back off from one or more of its rationales from the marriage decision, or (2) candidly acknowledge that a bare majority of Californians can limit fundamental rights for anyone, including vulnerable minorities, under the state constitution. It's hard for me to see how either option would be attractive to the court.
One more brief note from today’s argument. If it wasn’t clear before today, it is now clear that Attorney General Jerry Brown’s role in the case has not only been unhelpful to the petitioners, but has undermined it. His view is that Prop 8 is an amendment rather than a revision “under existing cases” but that Prop 8 is unconstitutional because it took away a right that is on an unspecified and growing list of “inalienable,” natural rights that can never be taken away by any constitutional change process. Brown thus undermines the petitioners on their strongest argument (the constitutional-procedural one) and offers instead a much weaker one (a constitutional-substantive one). It was plain in oral argument that none of the justices were buying it, and that Brown’s lawyer, given an impossible position to defend, could not defend it.
UPDATE: In response to some commenters' concerns about the usurpation of democracy and popular sovereignty if the court invalidates Prop 8, the question in the case is not whether the state constitution can be changed but how. The distinction between revision and amendment is not a judicial invention, but a matter of constitutional text. Unless an amendment is whatever the majority votes for, a position even the legal supporters of Prop 8 don't take, that textual distinction calls for a judgment about how to distinguish them.