Prop 8 Note

Sorry -- I have been really out of it for a couple of days, fighting off one of those obnoxious late-season colds, and so I missed responding to this in a timely fashion, but it highlights a point that's worth keeping in mind. Reader PietB sent this comment on the California Supreme Court and the oral arguments on Prop 8 in response to my post from a couple of days ago:

Nearly everyone who has commented on the Cal Supes' hearing the other day has discussed it in the context of whether anyone was for or against gay marriage. Although some of the questioning and certainly some of the oral argument may have sounded like that, the basis for the hearing was not the validity of the concept of same-sex marriage; the suit is to determine whether Prop. 8 was correctly included on the ballot in the first place -- whether it was simply an amendment to the State Constitution or whether it represented such a fundamental change to the way the State oversees rights that it amounted to a revision. If you watched the streaming coverage, or if you have any knowledge of California's Byzantine Constitution, you know that it has been amended over 500 times, but that amendments amount only to such things as guaranteeing the right to fish for bass with live bait or shoot wild ducks on your own property.

Revision requires a much more convoluted process than simply qualifying a ballot measure, because the theory is that it changes the fundamentals of how the State regards its duties. Anti-Eight forces were noting even as the ballots were being printed that it had been included improperly, and the challenges simply carry that argument to its proper locus. Justice Kennard's questioning seemed to me to indicate a line of thought that saw a necessary connection between qualitative and quantitative change -- that a qualitative change was impossible without a quantitative mass of language in a ballot measure, which I found surprising, to say the least. I mention her specifically because she wasted so much of the appearing lawyers' time in narrowly focussed but wildly over-explained questions that seemed designed to show her deep grasp of the issues rather than on making any headway in comprehending the briefs submitted, and I must say I was not impressed by the fact that she couldn't seem to shut her fucking mouth.

The State's Deputy A.G. was an embarrassment, particularly since he was followed immediately by Kenneth Starr, surely the oiliest advocate to appear on Court TV in a generation. Starr immediately brought to mind Prof. Higgins's description of Zoltan Karpathy -- "ooooozing charm from every pore, he oillllled his way around the floor", as Rex Harrison said. But Krueger, for the State, hemmed and hawed and couldn't seem to put two words together without adding "ya know" to them. There's some suspicion here that Jerry Brown put Krueger on the stand as a way of hedging his bets: Brown's against the validity of Prop. 8 but he needs to lose the case so that voters won't hold it against him when (oh, lordy, please NOT) he runs for Governor again in the next election. Starr's disingenuous arguments, which I would love to read in the brief, were simply too neo-conservative for me to listen to without being sickened: we don't challenge the validity of the marriages already performed but if we prevail we will not recognize them as legitimate -- how Republican is that?

The key point here is that this suit is most likely to be decided on a narrow finding of "revision" versus "amendment," which we do, indeed, tend to lose sight of in the light of the ancillary questions that aren't really germane, although they will most likely be affected by the decision: are those marriage peformed under existing California law still valid? seems the most important one.

In the meantime, efforts do continue -- and should -- to bring an amendment to the amendment to the ballot in 2010, and there's hope that the leadership of No on 8, having proven themselves unbelievably incompetent and irresponsible, will at least allow someone who knows that they're doing to manage the next campaign, even if they can't bring themselves to step aside completely.