Disclaimer: I’m not a lawyer, so take this as analysis from an educated lay-person with a limited attention span. On Thursday, morning we tuned in to watch the three hour oral arguments at the CA Supreme Court to repeal prop 8. Boy was it fun. Four lawyers stood on our side to argue that prop 8 was a revision as opposed an amendment and thus should have gone through the legislature before reaching the voters. You see (as I put on glasses and a tweed jacket), last year the court ruled that gays and lesbians are part of a suspect class. It sounds bad but it really isn’t. Members of a suspect class are historically discriminated against and subject to minority protections including strict scrutiny when it comes to the Equal Protection Clause (which is in the Constitution). Proposition 8 violates or revises the Constitution to exclude us, a suspect class, from a specific right that should be protected under the Equal Protection Clause. It flies in the face of the Constitution. The first lawyer, Shannon Minter of NCLR got hit hard and early with tough questions from the bench. Minter argued that an amendment has to be, “consistent with the existing purposes and principles of the Constitution.” Obviously prop 8 is not.

Minter was followed by celebrated civil rights lawyer Ray Marshall. “For the first time, a ballot initiative has been used to take away a fundamental right from a suspect classification. If left unchallenged, there is no principled difference between being able to take away the rights of gays and lesbians to marry and being able to take any right away from any group.” Marshall was calm, well spoken, and a valuable ally for our this civil rights movement. The third lawyer, Michael Maroko, represented Robin Tyler and Diane Olsen. He was a little spirited for the tone of the courtroom and twice said “heterosexual” when he meant “homosexual”. The highlight of his argument was his animated statement that “if the state stuck its finger into the marriage business, it should do it equally.... If gay couples don't have the right to marry, straight couples shouldn't either.” Maroko was followed by San Francisco Chief Deputy City Attorney Therese Stewart. She was spunky with her purple handkerchief. She was aggressive, prepared, composed, and well spoken. She argues that equal protection is woven throughout the California Constitution and not “simply a stand alone measure.” The fourth lawyer to argue was Christopher Krueger from the office of Attorney General Jerry Brown. Here’s where it went downhill. Krueger seemed flustered, unable to finish a sentence, and completely thrown off his game. Unfortunately, Brown did not stand united with the first three lawyers in arguing the revision and was arguing what the court termed a “novel theory”. I never got a clear understanding of that theory from Krueger but he did reference inalienable rights several times. From what I can glean from Jerry Brown, they are arguing that prop 8 is simply unconstitutional discrimination. This is a good argument, just poorly executed at least in oral arguments. That whole section was quite unfortunate. I’m hoping the written argument was more eloquent though by the looks of the judges and their questions, they weren’t buying it. Then came the intervener argument: Ken Starr. If you don’t know and love Ken Starr already, let me just remind you that he’s made a career out of being a conservative kiss ass and professional rival of Bill Clinton. I swear, he acts like Bill Clinton kicked his puppy. Now he thinks gay people killed his puppy. Ken Starr argued that the sovereignty of the people rules and we have the right to basically make up whatever we want as long as the majority votes for it. This is of course is barring any violations of federal law, but in a vacuum, he basically said we can vote to change whatever we want in state law, no matter how “unwise”. The court asked him about hypothetical situations like: Could gay couples be precluded from adopting children via amendment? Could voters take away the domestic partnership rights? And Ken Starr basically said yes that would be valid. So say we were in a war against let's say... the Japanese... and then the people said, “Hey, let’s put Japanese people in a camp so they can’t spy on us”. A simple majority could vote to add an amendment to the Constitution that says people of Japanese descent are to be placed and held in camps. Ken Starr says in his own words that the people have the right to make those changes; we can add, change, or delete rights in the Constitution based on a simple majority vote, no matter how “unwise”. Mobocracy anyone? He also argued that a revision is only applicable when referring to a change in the structure of state government. The judges argued back that their rulings on revisions have only applied to the structure of the government because that is all they have been presented with and does not mean it can only apply to changes in structure. This case is new and unique to the court. Then he talked about the 18,000 marriages that were performed before prop 8 passed. First he contradicted himself when answering the judges question, saying “I do not believe…. that proposition 8 invalidates, what it does do is deny recognition.” Then he consistently stated that the marriages are not recognized or valid in California. He graciously conceded that “no one is tearing up their marriage certificates.” Although I’m sure if he could, he would personally go to the homes of all 18,000 with a shredder. The judges were just as colorful as the lawyers. Chief Justice Ronald George was the one to watch and he did not seem to be digging the revision argument. Of even more concern was his repeated question as to whether or not a voter based initiative going the other way (voter based initiative to repeal prop 8), should then be considered a revision as well. Our lawyers kept arguing back that the removal of rights from a protected class is a revision while the addition is not. Justice Ming W. Chin had the most logical idea: What if we left marriage to religion, and government doles out Civil Unions? Both sides agreed that it would be the most fair solution, but unfortunately government is way too deep into the marriage business to back out now. [caption id="attachment_1507" align="alignnone" width="150" caption="Justice Ming W. Chin"][/caption] The most annoying was Justice Joyce Kennard who kept interrupting with long winded comments in the form of questions. I don’t know if she was stalling, or if she’s just like that. It appeared like her mind was made up against the revision argument. She repeatedly referred to her belief that no tangible rights were removed and it is essentially a matter of nomenclature and thus is not a revision. This is especially unfortunate because she voted on the side of gay marriage the first time around. If we don’t get the votes of the justices who voted for marriage equality the first time around (in a narrow 4-3 decision), then I don’t see us having a chance. That being said, there appeared to be two justices who were on our side for the most part. One almost fed arguments to Krueger while he was struggling but he didn’t bite. Once again, I’m not optimistic. While we wait for the court’s decision (within 90 days), I’m going to get ready to gather signatures for a gay marriage initiative on the 2010 ballot and hope they don’t deem it a revision.