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The Proposition 8 Sausage Factory

Overview and Analysis of Prop 8 Hearings in March 2009


March 2009

Who has the right to get married in California, and who does not? Is marriage religious, secular or both? Can two women marry each other, or two men? Is marriage a fundamental right that needs protection under the law? Who gets to decide?

The seven Justices of the California Supreme Court heard these and many other equally vexatious questions during three breathless hours of oral argument in the Proposition 8 cases in San Francisco on March 5th, 2009.

The language of the proposition itself, and the amendment that now appears in the Declaration of Rights in Article One of the California Constitution [Section 7.5] appears on its face to be a straight forward statement – 14 words – that seeks to answer many of these questions once and for all for the people of California. "Only marriage between a man and a woman is valid or recognized in California." Simple.

Supreme Court Hears Oral Arguments

Of course, that veneer of simplicity belies a battle of wills between cultural forces that has been generations in the making. That battle was dramatically displayed in the streets surrounding the Supreme Court on March 5th, where hundreds, if not thousands, of partisans on both sides had gathered to voice their beliefs on the matter. They spilled out on the courthouse steps and into the plaza across the street under the watchful eyes of riot police and the press with signs colorfully stating polarized positions – "One Man + One Woman = Marriage" and "Hate is not a family value!" – and with bullhorns amplifying the opposed mantras of each side.

Battle lines were drawn even inside the Supreme Court in the Milton Marks Auditorium where ticket-holding supporters for each side cheered, applauded and jeered at the simulcast as their avatars appeared to score rhetorical points in the colloquy with the Court. The experience of watching the Prop 8 oral arguments felt more like watching a boxing match or a football game than the orderly administration of justice in the highest temple of jurisprudence in the state.

The emotional tension at the Supreme Court underscored just how difficult and life-moving the issues raised by Prop 8 are, not only to the true-believers assembled in San Francisco that morning, but to many millions of people throughout the state and the country. With so much drama – not to mention hundreds of pages of legal briefs filed in the cases – could three hours of questions and answers really be sufficient to flesh out the issues raised and to make a meaningful decision? It was impossible to be present in the Supreme Court that morning and not feel deep respect for the seven Justices of the Court and the six attorneys standing before them into whose hands the resolution of this epic battle had been entrusted.

Being an attorney myself, and having stood before courts to argue motions and briefs, I empathized with these attorneys. It looked obvious to me that they had spent weeks, if not months preparing for this morning. But, I never argued a case with so much at stake, and never before the Supreme Court of California with thousands and maybe millions of people watching and hanging on every word. I simply could not imagine a more daunting test of advocacy.

So, it was both exhilarating and painful to watch each of the six lawyers approach the lectern with confidence and grace, their notes carefully arranged before them, braced like swimmers in an Olympic meet on a block, standing ready to launch into an oracular sprint, only to have their first syllables drowned in wave after wave of questions from one Justice after another. It was clear after the first few minutes that this hearing was not going to be a Clarence Darrow moment for any of these lawyers. There was no time for theatrical oratory when so many questions had to be asked and answered, each question raising scores of other questions. The next three hours was a riveting lesson on the workings of constitutional democracy. But unlike a civics lesson, this was an exhibition of the nuts and bolts of governance happening in real time.

Amendment or Revision?

At the heart of the cases was the purely legal question of whether or not Prop 8 constitutes an "amendment" of the Constitution needing only a simple majority of votes in a general election, or rather, a more far-reaching "revision," which would require a two-thirds majority of the State Assembly to be placed on the ballot. Revisions have a much higher hurdle to surmount to make it onto the ballot than amendments because their impact can result in broad modifications of existing laws and the function of government, and consequently are afforded considerably more legislative and public scrutiny than simple amendments.

However, As the Justices made clear throughout the hearing, the people of the State of California have voted to amend the Constitution 500 times in its history, and they've voted to override the Court's decisions in many instances, including instances where fundamental rights were at stake as in the school integration cases. If the voters could amend the constitution to address the issue of school integration, why shouldn't they have the right to limit the right to marry by amendment also? Are there any rights that are not properly the subject of the amendment process at all? The Chief Justice captured the gist of the problem when he asked if the real issue in the Prop 8 cases was the ease with which a simple majority could give or take away the rights of recognized minorities through the amendment process? If that were the case, shouldn't the parties be seeking to amend the amendment process itself rather than fighting over the legitimacy of the amendment?

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