CARNAL NATION

There's been no shortage of commentary in the wake of yesterday's oral arguments before the California Supreme Court over Proposition 8, which amends the California Constitution to make it illegal for the state to recognize same-sex marriages. One of the things that makes it difficult to call what decision the court will hand down within the next 90 days is that, due to the grounds on which the legislation was challenged, the court's decision will have much broader implications than merely whether same-sex couples can marry. The challenge focused on an obscure distinction in California law: whether a proposed change is considered an amendment of the Constitution or a revision. The latter is a much more far-reaching change than an amendment, one that fundamentally alters the structure of government. If a change is considered to be a revision, then it can only be placed on the ballot by a two-thirds vote of the legislature. There is no solid definition of when a proposed change in law qualifies as an amendment or a revision, but a revision can generally be said to require a change in the basic structure of government.

Following the oral arguments presented to the court yesterday, most opponents of Proposition 8 seemed pessimistic. During the arguments, Chief Justice Ronald M. George, who wrote the decision allowing gay marriage last year, expressed skepticism about the grounds for challenging the law: He noted that the problem might lie in the amendment process itself, which might make it "[J]ust too easy to amend the California Constitution."

Associate Justice Joyce L. Kennard, who also voted for the original decision, archly said that "What I am picking up from this case is that the court should willy-nilly disregard the will of the people." In their questioning of Kenneth Starr, who represented the supporters of Proposition 8, however, the court seemed equally skeptical that those couples who had been married between May and November 2008 should have their marriages invalidated if the law is upheld.  Legal blogger Scott Lemieux, an assistant professor of Political Science, writes that "The outcome looks bad," but also concedes that "the argument[s] for striking down Prop 8 in the abscence of a federally enforceable right are pretty weak.) On libertarian legal blog The Volokh Conspiracy, Dale Carpenter says that: "It seemed to me that Chief Justice George and (especially) Justice Kennard, both in the 4-justice majority in last May’s marriage decision, were quite skeptical of the argument that Prop 8 was a revision requiring prior legislative approval. Maybe they were being devil’s advocates. But losing those two votes, if they’ve been lost, probably means losing on the challenge to Prop 8." Although National Review's Maggie Gallagher was openly gleeful at the possible downfall of anti-8 arguments, even she had to concede that some of Ken Starr's arguments didn't hold up well: "Ken Starr is a heckuva lawyer, but he was swimming uphill asking the judges to consider his argument that Prop. 8, on its face, applies to marriages performed prior to its enactment, too."