Thursday, March 5, 2009

Selective roundup of news and attorney comments on oral arguments

UPDATED 03/10/09

Replay court hearing video, Sacramento Bee live blog (free registration required) and at The California Channel (Columbia Law School professor Katherine M. Franke recommends that California Channel viewers "fast forward 15 minutes to skip the Cal. Sup. Ct. promo and get to the real argument.") The California Supreme Court also provides an mp3 audio file.

Legal Newspapers

03/05/09 The Recorder and affiliated Cal Law Legal Pad blog:

"Same-sex marriage is history in California, at least for now. This morning California Supreme Court justices hinted strongly that they will uphold Proposition 8, the November ballot initiative limiting marriage to heterosexual couples." The Recorder article and Cal Law post also suggest that the Court will probably sustain the 18,000 same-sex marriages performed after the Court decided In re Marriage Cases, but before voters passed Prop. 8.

03/05/09 San Francisco Daily Journal (subscription required):

This article - from a legal newspaper that competes with The Recorder - makes the same observation as the Recorder about how the Court will likely decide the Prop. 8 litigation.

Other newspapers

03/05/09 LA Times:

"Reporting from San Francisco and Los Angeles -- The California Supreme Court appeared ready today to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed likely to decide -- perhaps unanimously -- that the marriages of same-sex couples who wed before the election would remain valid."

03/05/09 Oakland Tribune (posted at

Ruthann Robson, professor at CUNY School of Law, considers this article "one of the best recaps of the argument I've read so far."

3/05/09 How Appealing Legal Blog Posted by Howard Bashman :

"California Supreme Court appears likely to uphold gay marriage ban": Howard Mintz of The San Jose Mercury News has this news update.

The Sacramento Bee has a news update headlined "Justices hammer both sides in Prop. 8 hearing."

The San Francisco Chronicle has a news update headlined "Court hears Prop. 8 arguments."

And The Associated Press reports that "Calif justices hear arguments in gay marriage case."

Comments by attorneys and law professors

03/06/09 Leonard Link:

New York Law School Professor Arthur Leonard makes this observation:

"It seemed likely from their comments that George and Kennard would have difficulty voting to reject the results of the popular initiative vote, narrow as the majority was.It is possible that [Chief Justice] George and [Justice] Kennard were trying out their doubts but will ultimately resolve them against Prop 8, but that result seems unlikely, especially in the case of Kennard, who spent so much time during the argument appearing to explain her position as not being a 'change' in her views about marriage, but rather a reflection of her understanding of the initiative process."

03/06/09 ABA Journal Law News:

In a comment on the Journal's report, San Jose attorney Daniel Chiu finds that the reasoning required to uphold Prop. 8 would involve "judicial gymnastics and bad law."

03/05/09 NY Times:

"Therese M. Stewart, the chief deputy city attorney of San Francisco, who had argued against the proposition in court, said that if the justices uphold Proposition 8, 'we will go back to the ballot box, and we will eventually prevail.' "

"Andrew P. Pugno, co-counsel for proponents of the ban, was upbeat. 'We’ve been confident all along that Proposition 8 will be upheld,' he said. 'We felt good coming in, and we felt good coming out.' "

03/06/09 UC Berkeley The Daily Californian:

"We are definitely dealing with something incredibly controversial," Therese M. Stewart said. "We went out on a limb, not because it's not the law but because it's a new kind of revision case."

03/05/09 MSNBC Interview of San Francisco City Attorney Dennis Herrera:

"[W]hat was very telling was the chief justice‘s questions of Judge Kenneth Starr who, representing the other side, said very, very clearly, that if Prop Eight was allowed to stand, issues such as free speech and other fundamental rights that many of us take for granted would be freely able to be changed by a vote of the people."

03/05/09 Bloomberg News:

“The court is always reluctant to overturn a ballot initiative,” said Vikram Amar, a constitutional scholar and UC Davis law professor. In fact, as the LA Times reports, "[th]e state Supreme Court has rejected at least six revision challenges of initiatives, including measures that reinstated the death penalty, changed tax law (Proposition 13) and imposed term limits." Amar was also interviewed on tonight's PBS News Hour With Jim Lehrer.

03/05/09 Christian Science Monitor:

"The fundamental question that the court has to answer is just how far can the initiative process be used to change the California constitution and can it literally be used to take away any rights, no matter how fundamental," says David Cruz, professor of law at the University of Southern California , and a constitutional law scholar. "The justices might have to break new ground in interpreting the state constitution in order to classify Prop. 8 as either a minor amendment which can be adopted using the initiative process or a more profound revision … which cannot," said Cruz after watching the hearings.

03/05/09 San Diego Tribune opinion article by ADF attorney Glen Lavy:

Glenn Lavy "argued before the California Supreme Court in defense of Proposition 22 and is part of the legal team advising the defenders of Proposition 8 in court. He is a senior vice president and senior counsel for the Alliance Defense Fund (" He contends that if the Court overturns Prop. 8, "it would effectively reduce every future state election to a straw poll."

03/05/09 Opposing Views Lambda Legal article:

The Lambda Legal author has not been identified. The article quotes Jennifer C. Pizer and Eva Paterson.

is "Marriage Project Director for Lambda Legal and co-counsel in the legal challenge to Prop 8." She said that Prop. 8 represents "a radical attempt to strip a cherished constitutional right from just one targeted minority group and then to stop the courts from doing their most basic job of upholding the constitutional promise of 'liberty and justice for all'."

Paterson is president of the Equal Justice Society, which participated in filing an amicus brief. "We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community," she said. "If the Supreme Court allows Proposition 8 to take effect, it would represent a threat to the rights of people of color and all minorities."

03/05/09 KKGN Peter B. Collins show:

The Recorder identifies Deb L. Kinney as a "leading estate planning attorney within the LGBT community." Collins interviewed Kinney about the oral arguments. The interview of about 8 minutes begins at about 5:50 minutes into Collins' program. Kinney observes that a core issue is "whether a simple majority vote in California can actually strip any minority group of what's been deemed a fundamental right. And I think that's the radical, unprecedented change that's put all of us in California at risk." She adds that if the Court upholds Prop. 8, "I worry for other minority groups. Ken Starr seemed to think that we should be able to take away rights from any group with a very simple majority ... I often wonder if we had to vote on interracial marriage today whether it would pass today."

03/05/09 KGO AM 810 Newstalk 810 Radio

Frederick Hertz, author of Making it Legal: Considering Same Sex Marriage, Domestic Partnership and Civil Unions, was interviewed about the oral arguments. Unfortunately, online listeners have no option to "fast forward" to the interview segment. This program may not be available after 03/12/09.

03/05/09 Volokh Conspiracy:

Dale Carpenter is a Professor of Civil Rights and Civil Liberties Law at the Unversity of Minnesota. "The main hope, such as it remains, for opponents of Prop 8," he writes, "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."

03/05/09 Constitutional Law Blog: Ruthann Robson, professor at CUNY School of Law, summarizes the oral arguments.


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