Prop 8 and the Supremes

David S. White
Principal of the Law Firm of David S. White & Associates, West Los Angeles, specializing in litigation, arbitration and mediation of real-estate-related disputes and litigation since 1977;

Thursday, the California Supreme Court heard the Prop 8 oral arguments.   The Court itself put on a tour de force showing of great public relations by making publically available not only all the legal briefs, court orders and case histories of the various cases brought together for this landmark contest of Constitutional law, but also televising the three hours of oral arguments, accessible in real time in streaming video (go to  and it should be archived now). 

The Supreme Court’s website has a web page entirely devoted to the Prop 8 cases.  It includes a staggering amount of information at your fingertips, including all the legal briefs filed, not only by the parties, but also by the Amici Curiae  – Friends of the Court, literally; the many additional briefs filed by permission, actually invited by the Court, to aid in its analysis.  There are briefs filed by every imaginable segment of society including the Attorney General’s office, groups on either side of the issue, religious groups, law professors and many, many more.  If you are not accustomed to reading legally briefed arguments, the first thing you should know is that they are anything but brief.

The argument Thursday to the California Supreme Court was about whether or not the good People of the State of California, through use of the Initiative Process last November, passing Prop 8 by some 52%, could "amend" or "revise" our state’s Constitution.  Depending on which side you are on, the implications of each word are tremendously important to the outcome because "amending" will validate Prop 8; but, "revising" may invalidate it.   

This is all the result of a California Supreme Court decision reached May 15, 2008  ("In Re Marriage Cases" – a link to the opinion is at ).  It held that California Constitutional concerns of Equal Protection mandated that gays should be able to marry and, further, that a ‘civil union’ instead of ‘marriage’ was effectively the kind of "Separate, but Equal" distinction so long perpetuated in the area of race relations in the U.S., until blown away in 1954 by the U.S. Supreme Court in the legendary Brown vs. Board of Education.   

The California Supreme Court also heard one other fascinating issue argued Thursday: whether the thousands of gay marriages entered into during the months between the California Supreme Court’s ruling in the Marriage Cases on May 15, 2008 and the passing of Prop 8 on November 4, 2008, should stand as valid marriages, or whether Prop 8 should be given retroactive effect to invalidate all those marriages.

Reading the Justices’ questions to counsel during oral argument, often Socratically posed and not necessarily the reflection of an individual Justice’s views, is like reading tea leaves or a chicken’s entrails to predict the future.  Proponents of either side will cite what they find reassuring while the other side will cite those tidbits that warm the cockles of their own hearts.  But, nobody will really know how the Justices feel and, most importantly, how they will vote, until the Court issues its opinion within the next 90 days.  

Meanwhile, the unprecedented public access to read all the many, excellent legal briefs online and to view, on streaming Internet video, the several hours of oral arguments from truly the Cream of California’s Constitutional Law Bar, marked a wonderful opportunity for the public to see the inner workings of the highest level of California’s legal system for a day and to watch, up close and personal, the evolution of California Constitutional Law.   The Supreme Court’s public relations staff is to be highly commended for doing it.

Stay tuned: the decision, whichever way it goes, is bound to be highly controversial – it will sorely disappoint some, fill others with joy, and line many more pages of casebooks with law which will be cited by lawyers for many years to come.

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