Thursday, March 05, 2009
Prop 8 arguments
9:27 a.m.

I'm listening to Prop 8 arguments live. It's really rough. I'm glad I'm not a lawyer. The justices are giving the lawyers a hell of a time. They are comparing the taking away of marriage rights to the restoration of the death penalty and how can the death penalty be reinstated by initiative, which is taking away the fundamental right to life, then why can't the right to marriage be taken away by initiative.

9:37 a.m.

Mr. Morocco - The argument right now is the difference between a revision and an amendment. They are basically asking this lawyer to define the difference within the context of the California constitution.

9:44 a.m.

"This is an initiative that altered fundamental rights." I wish I could see the justices. This female justice is certainly on our side. Anyone knows who it is? (btw - Justice Corrigan)


The court went beyond the immediate issue of marriage nomenclature during the marriage cases arguments last May in making gays and lesbians a protected class.

Now they are talking about civil unions vs. marriage (religious). His argument is, if the state is going to be in the marriage business, do it equally, if not equal, then get out of the marriage business and everyone in the state should have civil unions.

9:44 a.m.

My god. I thought the difference between revision and amendment was codified. Apparently not. Hmmm. Perhaps this should be....y'think?

9:51 a.m.

Arguments are around bussing (which I have an issue with in itself) but the lawyer is arguing that the bussing initiative was a remedy, which 8 was not a remedy. The lawyer is now arguing pre-Perez (miscegnation) which would argue that domestic partnerships between mixed race couples and marriage between same-race couples.

9:55 a.m.

Maude I love this lawyer. He's really clear and really confident.

9:57 a.m.

Interestingly, Justice Kennard is being really tough but she voted with the majority in Marriage Cases and Corrigan is being really complimentary but voted against.

10:01 a.m.

Stewart (lawyer) up.

10:04 a.m.

OK, now they are talking about the invalidation of existing marriages and the lawyer is arguing that this is vague and it needs to be unequivocably clear.

The argument is now that voters did not know that this amendment would invalidate previously granted marriages. I wonder if that, in itself, would invalidate or overturn prop 8.

10:13 a.m.

Currently they are recovering the issues of constitutional and governmental structure and how Prop 8 either changed the structure of government or not. It's a complicated argument - they are really talking case law right now.

Oh, and apparently there were 63 amicus briefs.

10:19 a.m.

Chris Kruger (asst. atty. gen. for Jerry Brown) is arguing that Prop 8 is unconstitutional but I believe he is disagreeing with the other anti-Prop 8 lawyers that it is not an amendment. Not sure. Yep. He is disagreeing with his own side but his argument is that it is unconstitutional. His argument is very confusing and he doesn't seem clear yet.

10:25 a.m.

He is arguing that under Marriage Cases, they made the rights of gay men and lesbians to marry as an inalienable right. And now the death penalty has come up again whether the right to life and the right against cruel and unusual punishment (which has been changed through the initiative process) is equal to the right to marry.

10:34 a.m.

He does not seem to know his own arguments. Grrrr. He is really unprepared!

10:35 a.m.

STOP SAYING "y'know"!!!!! Wow. One of the justices just withdrew her question because the atty. didn't get it. OMG he is not doing us any favors.

10:40 a.m.

OK - this is I think the main point which is: why can the court change the people's will? And the breadth of the power of the people is not under discussion at the court at this moment. (Kannard)

10:43 a.m.
Is this a one way street? Does the same standard apply -- could the right be expanded and rescinded by the same process?

How do we know what an inalienable right is? and would anything that could be framed as an inalienable right not be subject to the people's right to initiative?

10:50 a.m.

When is his time up??? Oh, thank Maude. His time is up.

10:53 a.m.

Kenneth Starr is up. He is now arguing that amending the constitution an inalienable right which the court agrees with. They are asking him to now explain why this is not a revision. Ken Starr's voice is creeping me out. He sounds a bit like Bobby Jindal with the sing-songyness.

11:02 a.m.
He is arguing that any inalienable right can be rescinded by an appropriately worded and fully informed amendment.

If the people decide to make a change that is "unwise" they have that right without review by another branch of government. So he's basically saying that the right to free speech and the right to oh, property, could be rescinded even if it was idiotic. Of course it would go to SCOTUS and be "dead on arrival" but they have the right to make bad laws.

11:11 a.m.

"Each of us is a minority of one." Starr. Oh, the privilege.

11:12 a.m.

"We are asking this court to stay the jurisprudential course."

11:15 a.m.

If flattery gets you any prizes, Ken Starr FTW.

11:19 a.m.

What is Marriage has now come up and was brought up by K.Starr. I'm a little surprised that he brought it up. I'm also a little surprised that he referred to the U.K. as "her majesty's kingdom".
He also mentions that the traditional definition crosses all time and place. Um. No.

11:24 a.m.

Interesting, Ken Starr does not believe that Prop 8 invalidates the marriages (18,000) but that those relationships become unrecognized by the state, however, for instance, MA would recognize those marriages. Hmmm.

11:28 a.m.

Wow!!! This was a good one. Ken Starr argued that there was "a swirl of uncertainty when those couples got married" however one of the justices then argued that the court validated marriage and should people now not trust the court when it makes a ruling?

11:35 a.m.

"why wasn't there an express retroactivity clause (in Prop 8)?" Justice believes it was political strategy!

11:37 a.m.

Could he possibly be more condescending? "Fair point."

11:46 a.m.

The court ran out of questions for Starr so now we're back to Shannon Minter for rebuttal.

11:48 a.m.

Prop 8 took away the label of marriage and it's applicability to gay and lesbian couples. It left intact the designation of special class according to Kennard. "Is it still your view that the sky has fallen in?" way to condescend!

11:50 a.m.

Gay and lesbian couples would have the burden of coming to the initiative process as constitutional outsiders. - Minter

11:53 a.m.

Morrocco is up. Gender is a suspect class according to this court. Hypothetical - females on the court are now commissioners. It's about nomenclature - passes. Would this pass muster? Kennard moves the discussion to retroactivity. I think he was going toward the argument of gender discrimination on the marriage contract when he was cut off by Kennard.

11:59 a.m.

Now up - Stewart. She's good. I think she's got a really good point here. She is arguing that Starr's premise is fundamentally flawed - that the proposition process should not allow discrimination.

12:08 p.m.
Eesh. It doesn't look like Justice Kennard is on our side for this one.

12:08 p.m.

Initiative process is a limited power and this court has always had the responsibility to determine where that line falls. - Stewart.

12:11 p.m.

She's really bringing it back around to the revision vs. amendment issue.

12:13 ADJOURNED.

Now we wait.

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4 Comments:

Blogger Elizabeth said...

I'm watching this too. Kreuger is kind of a crappy attorney. It's almost painful to watch...although, he does seem to be hurting the Pro-Prop 8 side...

Blogger MonkeyGurrrrrl said...

Wow. It almost feels like I was there! "Now we wait" - easily the most difficult part.

{{hope}} {{hope}} {{hope}} {{hope}}

Blogger AmberSwan said...

Thank you, Faith, for posting this.

re: 11:02am, isn't the very definition of inalienable that it cannot be taken away? Ever? By anyone??

Fingers, toes and eyes crossed.

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