Some proposition 8 remarks

[t0dd]

In the court ruling for "In re Marriage Cases", which legalized same-sex marriage in California last year, I was reading over the concurrence of Justice Kennard, and found the following excerpts especially intriguing.

"The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection."

...

"Absent a compelling justification, our state government may not deny a right as fundamental as marriage to any segment of society. Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government.

Let's hope her view hasn't changed.

It's interesting that Jerry Brown made this same argument in his brief to the court: "the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification."

If anyone is interested, you can hear the audio broadcast of "In Re Marriage Cases" here:

http://easylink.playstream.com/aocstream/progressive/sct/sct_030408.mp3?dl=true (FYI.. Chief Justice George sounds like Jack Nicholson.. haha, and Justice Kennard has a Dutch accent)

While prop 8 is unprecedented, and we have no way of predicting the outcome, it is interesting to listen to the arguments and how the justices respond. It gives you an idea of who is on our side. Even Justice Corrigan, who dissented from the majority in the original case, believed the right to marry should be extended to gays and lesbians. However, she believed the people should be the ones to ultimately decide when that happens. Is it possible her view has changed? I guess time will tell.

If you appreciate law, all of this makes fascinating research. I'm no legal expert, but I think given the arguments before the court, and the opinion issued in "In Re Marriage Cases", the court will find some way to invalidate proposition 8. I hope so, anyway :-)