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Day of Decision: What to Expect from the California Supremes

Tuesday is the Day of Decision for the California Supremes on marriage equality. The High Court will announce its decisions at 10am Pacific Time. Will Proposition 8 be upheld or overturned? Will the Rainbow Window marriages stand, or will they be invalidated?

No one knows quite what to expect from the Court; many marriage equality proponents are pessimistic that Proposition 8 will be overturned.  To help people understand the decision when it is announced on Tuesday, I’ve explained the two questions before the Court and outlined the three possible scenarios. 

You know my explanation will be biased, since you know where I stand on Proposition 8.  But I’ll do my best to explain how the Court can rule.  You also know I’m not a lawyer, so this explanation is in layman’s terms.  Very layman.

There are two questions before the Court with regard to marriage equality.  The first question is whether or not Proposition 8 is such a sweeping change to the California constitution that it should have been handled differently; fundamental rights of a minority should not be put to a vote.   Because the Court previously ruled that marriage is a fundamental right, it’s conceivable that they will rule that this right cannot be taken away from a minority of the citizenry by a popular vote.

Prop 8 is a sweeping revision to the California constitution, this logic goes, and therefore needs to be legislated and then presented to the electorate for a vote.  Because Prop 8 was never voted on by the California Assembly and Senate, but made it onto the ballot via the signature-gathering referendum process, it short-circuited the proper mechanism and should be overturned.  

Of course, those who favor Prop 8 have a lot of will-of-the-people, activist-judges, majority-rule mumbo-jumbo on their side, but it’s really hard to argue that a majority can vote away minority rights, at least in America.  But the pro-Prop 8 folks do argue this, and the Court has upheld referendums before on the basis that California citizens are entitled to do what they want with their constitution.

The second question, which really only comes into play if Proposition 8 is upheld, is what does California do with all the marriages — perhaps as many as 18,000 even though no one kept track — that happened after the Court ruled marriage was a fundamental right and couldn’t be denied same-sex couples (May 2008) and before the voters narrowly approved Proposition 8 that November?  

Presumably, if the Court overturns Proposition 8, these marriages will stand.  But if they uphold Proposition 8, are these marriages valid?  Kenneth Starr argues that the language of the referendum — about only marriages between a man and a woman being recogized and valid — means that these "non-opposite" marriages never happened.  This, of course, means that 18,000 California families could have their marriage licenses revoked.  Unimaginable — but we’re talking about a guy who spent over sixty million federal taxpayer dollars investigating a blow job in the Oval Office, so there you are.

So what are the three possibilities we might expect from the Court?

One — the Court upholds Proposition 8 and also invalidates the marriages.  This is the most extreme position, promoted by Kenneth Starr and his allies.

Two — the Court upholds Proposition 8 but allows the Rainbow Window marriages to stand.  This confirms the end of marriage equality by Prop 8, yet permits marriages licensed during the period when marriage equality was state law to stand.  There will be a set of married same-sex couples in California who are entitled to all the rights and responsibilities of marriage.  And they will be unique, since there will be no more same-sex marriages.   This is the "split the baby" consensus decision many observers expect from the Court: it upholds the majority vote but doesn’t do violence to families who formed themselves while relying in good faith on last May’s Court decision in favor of marriage equality. 

Three — the Court overturns Proposition 8, ruling that it was an impermissibly broad revision to the Constitution to put before the electorate without going through the legislature first.  The Rainbow Window marriages stand, of course, and other marriages might begin immediately.

Stay tuned; we’ll have results as soon as they are available on Tuesday morning (afternoon for you East Coasters). 

For those of you seeking to acknowledge the California Supreme Court’s decision in your own community, whether via protest or celebration, there are Day of Decision events nationwide.  Find yours here

Californians — LGBT and our straight allies — who seek to galvanize support for marriage equality, please join up in Fresno this Saturday for the locally-organized statewide event set for the first Saturday after the Court decision — "Meet in the Middle for Equality."  More information here.

UPDATE: For you legal wonks who need more grist, I can heartily recommend A Legal Wonk’s Guide to the Prop 8 Hearing.  It’s a swell compendium of all the issues the Court is considering, written by an actual lawyer and published in the California Litigation Reporter, the monthly publication of the Continuing Education arm of the California State Bar. 

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Teddy Partridge

Teddy Partridge

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