Oral arguments are happening right now over the constitutionality of the constitutional amendment Prop. 8. It is an Orwellian proposition: Should the court take away the right to vote for Prop. 8?
Judge Joyce Kennard is raking the Marriage Equality lawyers and Attorney General Jerry Brown’s stand-in over the coals. She is one of the four pro-gay-marriage justices and also the ONLY judge who voted not to hear the case that Prop. 8 is somehow unconstitutional because 14 words defining marriage are a revision of the basic structure of government.
Judge Kennard seems moved primarily by the idea that substantive legal benefits remain unchanged, and thus the equal-protection powers of the court are only very narrowly circumscribed. Is the battle over the label “marriage” worth launching a judicial revolution?
The anti-Prop. 8 lawyers actually told the Court it should not only take away the right to vote for Prop. 8, but that if it fails to do so maybe it should abolish marriage altogether and leave only civil unions.
For the court to argue that the one thing it cannot permit voters to do is define marriage as one man and one woman, after all of the things the voters of California have done to amend their constitution — restore the death penalty, abolish affirmative action and busing, to name just a couple — that is really extraordinary.