Long-Term Commitment - The Recorder's annual retrospective on the California Supreme Court

12/31/08: Santa Clara University law professor Gerald Uelmen repeats his belief that the California Supreme Court will uphold Prop. 8. Of In re Marriage Cases, 43 Cal.4th 757, he says that the Court "clearly went out on a limb, and the people sawed it off." If the Court invalidates Prop. 8, Uelmen predicts a recall movement to oust Chief Justice Ronald George.

Although California Attorney General Jerry Brown recently reversed his position on Prop. 8, Uelmen rejects Brown's argument that Art. I, Sec. 1, of the California constitution protects an "inalieable right" of liberty at the core of the right to marry, and that a majority vote can not, without compelling justification, abridge this fundamental right. "He's suggesting that if you label a right inalienable that somehow it becomes untouchable by constitutional amendment," Uelmen said. "And I think that just turns the constitution on its head."

Kent Richland, an appellate specialist at Los Angeles firm Martin, Stein & Richland, accepts Brown's argument: "You are essentially talking about a majority of the people being able to determine that any minority has less rights than others," he said. "And that's contrary to the fundamental concept of equal protection. There's reason to think that this court would be extraordinarily disturbed by any system in which a minority isn't entitled to the same rights as others."

UC Berkeley law professor Jesse Choper believes that if the Court sustains Prop. 8, it will not also invalidate the 18,000 same-sex marriages performed before the election. He bases his belief on an analogy: if nullifying the marrages "were not the denial of a civil benefit, but an imposition of a criminal sanction, it would be unconstitutional to be ex post facto."

Justice Kennard denied review of Prop. 8, except on the question of retroactive application, because, Richland says, "she saw [retroactivity] as a crucial issue that had to be resolved immediately, but that the other issues could go through the trial court, the court of appeal and the Supreme Court. She's always not wanted the Supreme Court to act precipitously."

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