Waldlaw Blog

Monday, March 30, 2009

Predicting the Continued Validity of Last Summer's Marriages

In keeping with my principle that I blog about any question I'm asked 3 times in one week (see my entry of 2/27/09), it's time to blog about the future validity of the marriages entered into by same-sex couples between June and November, 2008. Lots of folks are asking me what I think the California Supreme Court will do in the case challenging the constitutionality of Prop 8. I have never been one to publicly predict how any court will rule, but after watching the oral arguments, I feel confident predicting this much: however the court rules on the constitutionality of Prop 8, I believe they will find the marriages entered into by same-sex couples June 16 and November 5 valid, and will order the state to continue recognizing them as such. The justices of our Supreme Court do not always show their hands in oral argument. Often, one leaves the courtroom having no idea what they are thinking. But my experience is that when they do show their hands -- that is, when they ask questions of the attorneys that clearly indicate which way they are leaning on an issue -- they are not sneaky or deceptive about it. In other words, while it is never safe to guess what the justices are thinking unless they make their thoughts clear themselves through their questioning, if they do make their thoughts clear through their questioning it generally is safe to rely on what was heard in the courtroom to determine which way they intend to vote. During the Prop 8 arguments, almost every justice spoke up to question the attorneys arguing for the retroactive application of Prop 8 -- and resulting invalidation of the approximately 18,000 marriages entered into by same-sex couples last summer -- how those attorneys could argue that the court should invalidate marriages entered into in good faith by couples relying on the court's own ruling in In re Marriage Cases. Even the most conservative justices seemed downright offended that certain lawyers (for example Ken Starr) were suggesting that they could invalidate marriages in good conscience that were only possible because folks relied on their (the justices') prior decision. In light of the clear sentiment with which these questions were asked, I feel quite safe in guessing that the justices are not planning on invalidating anyone's marriage that was entered into in reliance on In re Marriage Cases. Of course, that's just a guess -- but it's an educated guess, based on years of court-watching.


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