Namo amitabha Buddhaya, y'all.
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Tuesday, December 23, 2008

If I Were On The California Supreme Court, I'd...

Meters swum today: None.
Playing in the background: Steve Roach, from "InnerZone"

A. Resign.
B. Sue the Mormon Church for emotional damages.
C. Hold a press conference for the sheer pleasure of calling everyone in the state an idiot.
D. Quit the legal field and start managing a heavy metal band, on the logic that I can certainly hang with a better class of people in the music business.
E. All of the above, plus go on a rampage up and down Huntington Beach in a station wagon, yelling "Put your shirt on!" at all the muscley bodybuilders.

My sister and I used to play "Thankless Jobs" on long car trips when we were teenagers. The goal was to come up with the worst job ever, not because it called for Mike Rowe but just by its sheer impossibility. Executive director of Planned Parenthood of Utah. Professor of religious tolerance at Baylor University. Chair of a peace conference between Libya and Scotland. Stuff like that. You can now add to our list Justice on the California Supreme Court. In the wake of Prop. 8, which bans same-sex marriage in California some 18,000 marriages (including mine) too late, the Justices are being asked to consider some challenges to the vote. Here's a quick look, from my nonlawyer nonconstitutional perspective, at what they're being asked to do.

The main petition, filed by some couples, the ACLU, and the National Center for Lesbian Rights, alleges that the language of Prop. 8 is not a mere amendment to the state Constitution but breaks new ground entirely and is therefore a revision of the Constitution. This is angels dancing on the head of a pin, but it's a big pin and they're substantial angels. The difference is that a revision of the Constitution requires jumping through a lot more hoops. (Details here.) Based on the outcome of the vote in November, Prop. 8 would never have survived as a revision.

The problem with that argument? Well, the Court already had a look at that whole "revision vs. amendment" thing back in July and decided that Prop. 8 could still go on the ballot. One would like to think they wouldn't have let an amendment that should have been a revision go on the ballot. The Court also rejected a challenge on the ballot wording from some pro-Prop. 8 supporters, who argued that the ballot shouldn't read, "This initiative would eliminate the right of same-sex couples to marry." After all, all they were doing was defining marriage as "only between a man and a woman." I dunno, I guess "eliminate the right" sounded too mean or something.

Now here's the problem. By approving an amendment, if it wasn't illegal, the voters essentially excused the Court from hearing the case. So the fact that the Court is hearing it presents an existential argument as well as a legal one. Can you hear a case on a law that, by itself, is out of your jurisdiction? If a liberal falls in the forest and no one is around, is he still wrong? I think they can rely on a broad reading of Marbury v. Madison if they have to, but it's still an interesting question. I mean, if the Supreme Court does something illegal, who do you appeal to? she asked ungramatically. And if they decide that Prop. 8 was in fact illegal, can they really throw out a valid election result, even if it was bought with other people's money?

But the trouble is just beginning. If they hear this thing and uphold Prop. 8 as a valid amendment, they'll have to decide whether the 18,000 plus marriages are valid or not. Jerry Brown, the California AG and arguably the man you go to in a situation like this, says they are. Trouble with that, though, is that you end up with 18,000 married gay couples and lots of other gay couples who can't marry which would, of course, create two separate classes of people that are treated differently under the law. Which is against the California constitution. Here we go again. Besides, the text of Prop. 8 says that "only a marriage between a man and a woman is valid and recognized," which is kind of hard to argue with.

Naturally, the supporters of Prop. 8 have already demanded that the Court nullify those marriages, which will be hard to do for two reasons: Firstly, only the parties to a marriage may move to nullify a marriage. The state can't annul your marriage unless you ask it to. Secondly, all the marriage license applications were changed after the summer of 2008 to read "Party A" and "Party B" instead of "Husband" and "Wife" or "Bride" and "Groom". So how are you supposed to figure out which ones were two girls or two boys? I mean, sure, "Tiffany" and "Elizabeth" are a dead giveaway, but what if you have "Pat" and "Robin"? Or "J'kari" and "Lyric"? Even "Jen and Joan" is by no means a sure thing; "Joan" is an accepted spelling of "John" in the Pyrinees region between France and Spain. I mean, what are they going to do, throw out every marriage that happened in California between July and November? See above re: The State can't annul your marriage...

On the other hand, if they decide that the 18,000 plus marriages were not valid, then they've just put the State of California into the position of having committed massive fraud. Remember, all those marriages were legal at the time. Thousands of people coughed up a license fee, among other things, because they were legal. If they are now illegal, you've just passed the first ex post facto law in the history of the country - itself unconstitutional under Article I of some national document or other signed in 1783. The injured party in this case would be California. You'd have to hit the cosmic reset button, pretend none of this ever happened, and just watch the lawsuits roll in.

Think about it. The state would have to return scads of license fees to scads of couples, refund the fees for filing of deeds (if you're living together and you get married, you need to record a new deed on your house, if you own one), and very probably pay expenses, or, as we legal folk like to call 'em, "damages." In our case that would include the airline tickets and the cost of the DVD, and we could probably also argue for the disastrous meal in Balboa Park that followed. In short, it could be millions, in a state that's gonna run out of money in two months.

It's a clusterfuck of cosmic proportions. And you think your job sucks.


David Isaak said...

Nah, the bodybuilders are further up north. Huntington just has surfers.

As to being on the Supremes: Just before we left Hawaii (back in 1993), one of our best friends, Paula Nakayama, was appointed to the Hawaii Supreme Court, and basically the first thing she had to rule on was the constitutionality of denying licenses to same-sex couples. She ruled it unconstitutional, and since she was the newbie, everybody essentially claimed it was her decision (as if the rest of the court didn't exist). Boy, did she get some ugly hate mail.

Like you said, not such a great job.

Jen Ster said...

Hi, David! Oooo, you know a Supreme Court judge!! COOOL!!! I sort of kind of knew Justice Bedsworth, on the California 4th Circuit Court of Appeals. He writes a fantastic column called "A Criminal Waste of Space" in the otherwise forgettable "Orange County Lawyer" and wrote a book called "Things I Saw and Heard" which I read while recuperating from sinus surgery. So I will always have a soft spot for the guy. I mean, heck, he cheered me up when my nose hurt.

All things considered, though, being a judge of any kind is not on my list. Especially one of the Supremes. As my Civ Pro professor used to say, "The Supreme Court is not last because it is right; it is right because it is last."

Has anybody over there done anything to figure out what will happen either way? Because somebody with a greater mind than me needs to tackle this stuff. All I can do is walk around with a sign.

David Isaak said...

I think it will ages before any of this is resolved.

Paula wasn't keen on joining the Supremes. She liked being a regular judge and doing the whole dispensing justice thing better than writing commentary on abstract issues.