A Few Thoughts on the Prop. 8 Oral Arguments
Submitted by J Boogie [TLL] on Thursday, 5 March 2009Comments
Three hours to argue same-sex marriage. Heavy stuff here folks. This is going to be a state con-law gunslinging show, and the players are all showing up with their game faces on. Here are some quick thoughts on some of the attorneys performances.- Pet – Ms. Stuart: Loud, clearly got her point across. But she flubbed on a few questions and misstated some historical facts to the court. To her credit, she was able to correct herself with a little help from the court. Not a bad start for the petitioners, but not a great one either.
- Pet – Mr. Minter: Not as loud as Ms. Stuart (he was asked to speak into the mic, or speak louder right off the bat). Plentiful use of “uh”. Classifications based on sex get heightened scrutiny, and thus proposes that sexual orientation should be a class that receives strict or at least heightened scrutiny. Argues sexual orientation is an immutable characteristic just like race, gender. No evidence, no case, but says it is a matter of constitutional fact. Getting into his stride here. He made a good (though not legally) point that we choose to marry the one person in the world that we find irreplaceable, and it shouldn’t be different for gays and lesbians, or heterosexuals. Got a bit thrown off when asked what his definition of marriage is, and his opinion of the definition of domestic partnerships, but recovered better on the domestic partner question.
- Amicus Curiae – Mr. Marshall: Ehh…nothing spectacular.
- Pet – Mr. Morocco: The example master! He comes out swinging, firing off like an uzi. Hypothicals galore. First question posed is whether there is an actual legal distinction between amendment and revision. I am surprised that this wasn’t already set to be honest. But there is a difference in the language in Article 18, sections 2 and 3. The questioning then falls around the issue of whether there is any real deprivation of fundamental rights of same-sex couples since domestic partnerships and marriages endow the same essential rights to both. Separate but Equal didn’t fly in the past, why is it ok now? Justice Chin layed into Mr. Morocco pretty intensely. Talks too much, often interrupting the Justices, but it seems there is a decent rapport with the Court.
- Res – Mr. Kreuger, Representative for Attorney General’s Office: I don’t think he did that great a job. He took the position that Prop. 8 is an ultra vires amendment, rather than a revision as most others have attempted to argue. He has trouble dealing with several questions, seems flustered and stumped on a few others. Uncomfortable silences at time. You know, that half-second pause where you can tell the speaker didn’t really figure out the exact question. Not the most impressive speaker, and possibly the weakest of the lot so far. Doesn’t finish sentences, and it is never good when multiple Justices try to question you at the same time. In fact, mumbling to himself right at the end, so this was not a good at-bat for the challengers. The A.G.’s office should have sent someone better.
- Res – Mr. Starr: (Starr thinking to himself: “I’m so fucking cool. I argue with a hand in my pocket…oh wait, need to get the left out for this question. Nailed it. Let’s put lefty back in his home.”) The Justice chairs look comfy. Can you tell I am not a fan of Mr. Starr? And he is so prepared he has a failsafe point. Ultimately, the stumbling point for the challengers and a strong point for the respondents continues to be that the protections and rights of homosexuals have not been taken away as a result of Prop. 8. His argument rests upon “power of the people, the people are sovereign.” This is all TLL caught before other things came up. Starr is a good place to end.
On an aside – the Court makes the good point, one that I figured would come up, that the initiative power exists to amend the Constitution according to the will of the populace. So if this power exists, Californians could have amended the Constitution to limit the power of initiatives as has been done in other states. I am not a fan of initiatives. I think it gives far too much power to voters, who can do some pretty dumb things.
-TLL
