Tag Archives: constitutional law

The New Attack on Democracy: What the Founders Knew But We’ve Forgotten

constitutionOne of the foundational principles of American democracy is under attack.

When the nation’s Founders crafted the United States Constitution in 1787, they were careful to include a requirement that:

“The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.” (Art I, Sec. 6, Clause 1).

A similar provision for compensation applies to the president:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (Art II, Sec. 1, Clause 7).

The Founders understood that providing compensation for the new government’s elected officers was not a trivial matter, but an essential and cutting edge principle of the new democracy that they were striving to create — and one that directly and profoundly affected the kind of people who would be willing and able to serve as representatives of the people.

They knew too that no other nation on earth insisted on compensation for its elected officials.

In England, members of parliament as a rule served without pay.  In colonial America, candidates for public office usually followed the practice of their English counterparts and promised to serve without compensation.  In the states themselves, only Pennsylvania provided for “wages” from the “state treasury” to “all lawmakers.”

The Founders knew that this English aristocratic practice of not paying public officers created an enormous disadvantage for less wealthy candidates who could not afford to serve without receiving an adequate income for their efforts.

The Founders did not want public service to be a genteel avocation reserved for men of independent wealth, as it was in England, but wanted instead to create a system in which – as James Madison said – public office would be open to “those who have the most merit and least wealth.”

Fueled by the rhetoric of anti-government and anti-egalitarian demagogues (mostly in or allied with the Republican Party), this foundational and deeply American egalitarian principle is now under attack in this country – especially in California, where voters are responding to the state’s budget crisis by cutting the salaries of legislators and city officials, and where our billionaire governor constantly rails against legislative salaries and supports a 10 percent pay cut in legislative compensation.

But as the Founders knew – and we clearly have forgotten – adequate compensation for public officials is an essential element of a democratic government.

Cutting the salaries of public officials will mean that only the rich will able to serve – and when only the rich can serve, we will have the opposite of the government that Madison envisioned – one in which our representative have “the most wealth and the least merit.”

The Founders would not be pleased that the people are now so willingly – even eagerly – abandoning one of the fundamental principles of the American democracy that they fought to create.

The Trial of John Yoo

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John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

Iowa’s Same Sex Marriage Decision: What it Says and What it Means

libertykissIn 1998, the Iowa legislature, capitulating to a well-funded national campaign against gay marriage, amended the state’s marriage statute to define marriage as a union between only a man and a woman.

Today, in a stunning, courageous, and powerfully written decision, the Iowa Supreme Court unanimously ruled that the state’s anti-gay marriage statute is invalid because it violates the equal protection clause of the state constitution.

The Court’s decision in Varnum v. Brien (2009) is enormously significant not only because it allows same sex couples to marry in Iowa, but also because it so clearly, cogently, and conscientiously dismantles and destroys each and every one of the arguments that the anti-gay forces have made – and continue to make — against sex same marriage.

The Court described the plaintiffs as “six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.”  According to the Court, these plaintiffs – “Like all Iowans” – are people who “prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected,” but are different from other Iowans in being “sexually and romantically attracted to members of their own sex.”  These six couples, the Court observed, “seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment.”

The Court first asserted and defended its right and obligation to rule on the constitutionality of the anti-gay marriage statute.  Among the “basic principles essential to our form of government,” the Court explained, is that the state constitution “defines certain individual rights upon which the government may not infringe” including the right to equal protection of the law.  Citing the foundational United States Supreme Court case establishing judicial review of the constitutionality of federal statutes — Marbury v. Madison (1803) — the Iowa Supreme Court insisted that its “responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution” includes the obligation to “protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms.”

Certain fundamental rights, including the right to the equal protection of the law, are beyond “the vicissitudes of political controversy” and “beyond the reach of majorities and officials” to limit or deny.  Accordingly, the Court has the responsibility “to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”

Turning to the equal protection question, the Court first noted that “equal protection can only be defined by the standards of each generation… So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue5 centered on fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle equal protection justify exclusion of a class of Iowans from civil marriage?”

The proper equal protection question is not, according to the Court, whether the classifications made by the law are applied equally; instead the law itself must be equal: “In other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike.”

The Court noted that “courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect ‘prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”  Looking at the history of discrimination and prejudice against gay and lesbian people, the irrelevancy of sexual orientation to an individual’s ability to contribute to society, the immutability of an individual’s sexual orientation, and the historical political powerless of gays and lesbians, the Court determined that a “heightened scrutiny” standard should be applied to gauge the impact of the anti-gay marriage statute on same sex couples.

Nevertheless, the Court found that the anti-gay marriage statute did not pass constitutional muster even under an “intermediate scrutiny” standard because it is not “substantially related to an important governmental objective.”

The Court first emphatically rejected the claims that permitting same sex couples would undermine the institution of marriage or would harm the state’s children.

While noting the “superficial appeal” of the argument that same-sex marriage ban promotes the ‘integrity of traditional marriage’ by ‘maintaining the historical and traditional marriage norm [as] one between a man and a woman,” the Court found this claim to be circular: “When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a ‘barren form of words’ when ‘discrimination . . . is made an end in itself’.”

The Court next unequivocally held that “scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults.”  The Court also found that, in regard to protecting children, the anti-gay marriage is both under and over-inclusive: “The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or “overbroad generalizations about the different talents, capacities, or preferences” of gay and lesbian people, rather than having a substantial relationship to some important objective. … The ban on same-sex marriage is substantially over-inclusive because not all same-sex couples choose to raise children.”

The Court also found that “If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.”

The Court next rejected the claim that prohibiting same sex couples from marrying would advance the legitimate governmental objective of promoting procreation: “the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to ‘become’ heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny. Specifically, the statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose.”

The Court also rejected the claims that prohibiting same sex marriage promoted stability in opposite-sex relationships — “While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective” – and that prohibiting same sex marriage would conserve state resources – “Excluding any group from civil marriage — African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.”

Based on these findings, the Court concluded that none of the purported objectives of the ban on same sex marriage “were furthered in a substantial way by the exclusion of same-sex couples from civil marriage.”

Strikingly, and courageously, the Court then addressed the real basis for the same sex marriage ban – religious opposition to homosexuality: “While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling… Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained — even fundamental — religious belief. Yet, such views are not the only religious views of marriage… other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion… Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them… civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.”

The Iowa decision can not be as readily overturned as the California Supreme Court’s similar decision in the Marriage Cases was overturned by Prop 8.

Unlike California, where the state constitution can almost immediately be amended by a simple majority vote in a ballot measure, the Iowa constitution can be amended only when majorities in both the state House and Senate in two consecutive general assemblies approve an amendment, and then the amendment is approved by a majority of voters in the next general election. Since each general assembly lasts for two years, the earliest that a proposed amendment overturning the Court’s decision could reach voters is November 2012.

It is also notable that in reaching its conclusions, the Iowa Supreme Court extensively cited and relied on the California Supreme Court decision in the Marriage Cases.

Let us hope that the California Supreme Court, which is now considering whether  Prop 8 can take away the fundamental right of gay and lesbian people to marry, carefully reads the Iowa decision.

Prop 8: What’s Really at Stake for the California Supreme Court

In addition to the continuing validity of same sex marriage, the Prop 8 case before the California Supreme will decide an issue has not been directly address by the parties or the Court.

The primary legal issue at tomorrow’s hearing before the California Supreme Court on Prop 8 is the narrow and extremely arcane question whether Prop 8 is an amendment to the state constitution or a revision of the state constitution.

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John Marshall, Chief Justice of the United States

An amendment to the state constitution may be placed on the ballot by either a two-thirds vote in the state legislature or signatures equal to 8% of the votes cast in the last gubernatorial election.

In contrast, a revision of the state constitution requires both the approval of two-thirds of the legislature and a majority of voters.

In other words, while the voters in California have the right to amend their constitution by a simple majority vote through the use of ballot propositions, any revision of the constitution’s ‘underlying principles” requires a far more deliberate and complex process involving a two-thirds vote of the legislature followed by the submission of such proposed changes either directly to the voters or to a constitutional convention.

Prop 8 was never endorsed by two-thirds of the legislature.

Accordingly, if it is an amendment to the constitution, it is legally valid; if it is a revision of the constitution, then it is not.

There is little or no case law or commentary to help the Court decide whether Prop 8 is a (valid) amendment or an (invalid) revision.

The pro-Prop 8 lawyers will argue that the proposition changes only a small part of the constitution that applies only to a small group of people, and is therefore merely an amendment and hence valid.

The anti-Prop 8 lawyers will argue that because the proposition attempts to negate a fundamental right, it is a substantial revision of the entire constitution and hence invalid.

But appellate cases – and especially high profile and controversial appellate cases — are rarely decided on such narrow and arcane questions of law, even though lawyers and judges must pretend that they are.

Such cases are decided on the basis of the judges’ assessments of their consequences, and not merely the direct consequences to the litigants.

What’s really at stake in the Prop 8 case is the power and prestige of the California Supreme Court itself.

Prop 8 aims to overturn the California Supreme Court’s decision in The Marriage Cases (2008), where the Court held that “the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society,” and that “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

If this decision of the California Supreme Court, based on what it described as a “fundamental constitutional right,” can be overturned by a simple majority of voters in a ballot proposition, then the purportedly “fundamental” state constitution carries no more weight than a simple statute — and arguably even less weight, since a statute requires either the approval of a majority of the legislature and the signature of the governor or a two-thirds vote of the legislature.

And since appellate judges see themselves first and foremost as guardians of the constitution, if the constitution is diminished, then the judges are correspondingly diminished as well.

In our national history, the United States Supreme Court had little prestige until Chief Justice John Marshall declared in Marbury v. Madison (1819) that the Court, as the ultimate interpreter of the constitution, had the power to invalidate legislation as contrary to the constitution as — in the words of Article VI — “the supreme Law of the Land.”  John Jay, the first Chief Justice, had resigned in 1795 and declined reappointment in 1800 because, in Jay’s words, the Court lacked “the energy, weight, and dignity which are essential to its affording due support to the national government.”

If the California Supreme Court fails to invalidate Prop 8, it will be declaring itself similarly to lack “the energy, weight, and dignity” that is essential for it to be a coequal branch of government.

UPDATE:

In a stunning, powerful, and courageous decision, the Iowa Supreme Court, citing the California Supreme Court’s decision in the Marriage Cases, holds that its state’s ban on same sex marriage violates the equal protection clause of the Iowa Constitution.

The Supreme Court Won’t Force Senate to Seat Blago’s Choice

Several commentators have suggested that the Senate cannot constitutionally refuse to seat Roland Burris, Illinois Governor Rod Blagojevich’s choice for Barack Obama’s vacant Senate seat. 

I disagree.

KING POWELL CONFERENCEThe belief that the Senate cannot constitutionally refuse to seat Roland Burris is based on the Supreme Court’s decision in Powell v. McCormack, 395 U.S. 486 (1969), where the Court held that the House of Representatives could not refuse to seat Adam Clayton Powell, an enormously popular African-American Congressman from Harlem who had won reelection despite a scandal involving misappropriating public funds and being held in contempt by a state court. 

But while the Powell case would certainly be at the center of any attempt to force the Senate to seat Burris, whether it is the controlling precedent that some commentators have suggested is far from clear. 

Powell was decided a very long time ago, in a very different factual and political context, and by a very different Supreme Court.

There are also significant differences between the facts in Powell and the situation of Roland Burris.

In Powell, the Supreme Court found that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. … Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”

Unlike Adam Clayton Powell, Burris was never elected, a fact that undercuts the Powell Court’s rationale that “A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ … [T]his principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.” 

In addition, although Powell was charged with misappropriation and fraud, no one questioned whether the election process itself was tainted by bribery or corruption. 

In contrast, the Senate’s refusal to seat Burris (or anyone is selected by Blagojevich) is based on allegations of bribery and corruption in the appointment process itself. 

The Court in Powell found that “Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.” 

In the current situation, not only was Burris not “duly elected by the voters,” but the Senate is specifically empowered by the Article I, Section 5 of the Constitution to judge whether the election process  — or in this case, the selection process – of its members meets Constitutional standards: “Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members…”

The extra-legal contexts of the Powell case and the Burris appointment are also vastly different. 

Adam Clayton Powell , Jr., had been an outspoken advocate for civil rights since the early 1940s and had many distinguished and powerful supporters, including many of his fellow members of the House of Representatives.  Many believed that the House’s refusal to seat Powell was based on racism.

While these factors were not an explicit part of the Supreme Court’s reasoning in the Powell case, they surely played a role in the Court’s decision.  In this instance, Burris stands virtually alone, and no one (with the possible exceptions of Rep. Bobby Rush, Governor Blagojevich, and perhaps Burris himself) could seriously question whether the Senate’s stated refusal to seat him has anything to do with his race. 
 
In any event, it is unlikely that the Burris appointment will ever make it to the Supreme Court.

There will almost surely be a new Governor of Illinois by the time the Burris appointment would reach the Supreme Court.  At that point, Burris’ claims might be moot — or the Supreme Court would have to resolve the separate question of whether an impeached (or resigned) governor’s Senate appointment can be rescinded by the subsequent governor. 

My assessment is that the Powell case offers little or no guidance in predicting what the current Supreme Court would do if Burris insists on taking the seat.

My guess is that, given the potential damage to the Democratic Party and specifically to Barack Obama, Burris will end up not pushing it to that point.

Why Prop 8 Won’t End California’s Same Sex Marriages

For many progressive voters in California, the election results were bitter-sweet.  While Barack Obama cruised to victory here, the state’s voters also endorsed the elimination of the recently won right of gay and lesbian couples to marry.

sign-773791The most recent election results show that voters appear to have have endorsed California’s Proposition 8 — changing the state Constitution to require that “Only marriage between a man and a woman is valid or recognized in California” — by 5,376,424 (52%) to 4,870,010 (48%) with 99% of the precincts reporting.

Officials have already halted issuing marriage licenses to same sex couples and stopped performing same sex marriages.  California’s right-wing social conservatives, evangelicals, and anti-gay crusaders are celebrating. 

I believe that they’re celebrating too soon.

I would advise the supporters of Prop 8 to temper their celebration until the California Supreme Court rules on whether the fundamental right to marry can be eliminated for same sex couples through the proposition process.

My expectation is that the Supreme Court will find Prop 8 to be invalid and that California’s recognition of same sex marriage will stand.

Even before the election, the American Civil Liberties Union, the Lambda Legal Defense Fund and the National Center for Lesbian Rights filed a writ petition in the California Supreme Court urging the Court to invalidate Proposition 8 if it passes.

The argument is that “Proposition 8 denies the fundamental right to marry to a minority group based on a suspect classification … deemed to be suspect under the equal protection guarantee of the California Constitution … [and that] Proposition 8 constitutes an attempted revision of [the] state Constitution, rather than an amendment, and therefore is invalid because it was not enacted through the process required for a revision…”

While the voters in California have the right to amend their Constitution by majority vote through the use of ballot propositions, any revision of the Constitution’s ‘underlying principles” requires a far more deliberate and complex process involving a two-thirds vote of the legislature followed by the submission of such proposed changes directly to the voters or to a constitutional convention.

The ACLU, the Lambda Legal Defense Fund and the National Center for Lesbian Rights argue that Prop 8’s changes to the Constitution are fundamental in nature, impacting the fundamental rights of a minority, and can not be made by a simple majority vote on a ballot proposition.

I expect that the California Supreme Court will first issue a stay of Prop 8’s implementation, and then hear and decide the case quickly.

I also expect that the Court will rule, by the same 4-3 vote as in the Marriage Cases, that Prop 8 is invalid.

My prediction is that the Court will issue a long and scholarly opinion, authored by Chief Justice Ronald M. George (a Republican, appointed by Governor Pete Wilson, who also authored the Court’s opinion in the Marriage Cases), centered on the statement of former Chief Justice Roger Traynor that if a Constitution “is to retain respect it must be free from popular whim and caprice which would make of it a mere statute.”

California’s same sex marriage will stand.