Legal Experts Puzzled Over California Justice’s Lagging Support of Prop. 8

Maybe she’s had a change of heart…

Reporting from San Francisco — The California Supreme Court’s order last week to consider legal challenges to Proposition 8 contained one surprising twist — the name of the sole justice who voted against hearing the cases.

Justice Joyce L. Kennard, a staunchly independent if not stubborn jurist, has a lengthy record of protecting gay rights, including the right to marry, and often sides with the underdog in rulings.

In fact, her record is so unwavering that many gay-rights activists and several independent legal scholars surmised that her vote against hearing the legal challenges was procedural — for example, she might have wanted them to be filed in lower courts first — and did not reflect her thinking on the cases.

But a close reading of the court’s one-page order suggests that gay-rights advocates may have lost a usually predictable ally in their effort to overturn Proposition 8.

“It definitely isn’t a good sign,” said UCLA Law Professor Brad Sears, an expert on sexual-orientation law.

After learning of Kennard’s vote, he went back and read her concurring opinion in the court’s historic 4-3 vote on May 15 that permitted gays to marry. It left him even more puzzled.

Whether a state ban on same-sex marriage is constitutional “is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch,” Kennard wrote.

“Everything she writes in her concurrence is substantively what she will have to agree to in order to overturn Proposition 8,” he said.

Although it is impossible to know Kennard’s thinking — justices cannot comment on pending cases — others saw reason to suspect that Kennard may not be buying the argument that Proposition 8 was an improper revision of the state constitution.

The order said Kennard would hear a new case to resolve the validity of the 18,000 same-sex marriages “without prejudice” — a phrase that indicates she was open to arguments on the issue. But she declined to modify her denial of the Proposition 8 challenges with those same words.

“What she seems to be saying is that she doesn’t think it is worth reviewing,” said UC Berkeley Law Professor Jesse H. Choper.

The legal challenges are novel. Many scholars believe the court is more likely to uphold the validity of the marriages that occurred before the election than to overturn Proposition 8. The court will decide both questions in a single ruling next year, probably in the spring or early summer.

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