UPDATE: The court has announced they will issue a ruling on Tuesday May 26th.
Time is running out for the California Supreme Court to issue their ruling on Proposition 8. According to the standard rules of the Court they had 90 days from the arguments to issue the decision and since the court only issues rulings on 2 days (Mondays and Thursdays) they are down to three days.
Tuesday May 26th (because Monday is a holiday). Intent on this ruling would be announced Friday the 22nd.
Thursday May 28th. Intent on this ruling would be announced Wednesday the 27th.
Tuesday June 2nd. Intent on this ruling would be announced on Friday the 29th.
Informed sources suggest the ruling might be issued on Tuesday, which would give everyone an extra day to prepare for the reaction. I have previously offered thoughts on how the court might rule but thought I’d get a little more specific on names.
Two justices I expect to vote to uphold Proposition 8 are Justices Baxter and Chin. Both of them are conservatives who voted against legalizing same sex marriage and they gave no reason to suggest that they would change their minds during the arguments on 8. The closest either came was when Chin speculated on getting rid of the term marriage altogether to make both same and opposite sex marriages civil unions. But that is not much to hang your cap on so I assume two No votes there.
(Note: For purposes of this discussion a No vote is to reject the challenge to Prop 8 and keep it in place while a Yes vote is to accept the challenge and strike 8 down.)
By the same token, Justices Moreno and Werdegar were both strong supporters of the right to marriage in the original case and neither has suggested they changed their mind. In theory Moreno could be swayed by the fact he is, in theory, a candidate for the Souter seat in Washington but I don’t think he would change his mind on this issue (indeed shifting could hurt his chances, which are minimal at best).
So that gives us 2 Yes votes (to strike down 8).
Justice Corrigan was the third vote against recognizing the right to same sex marriage in the original case so I am going to assume she will remain with Chin and Baxter. Some court watchers speculated that her tone and the questions she asked during oral arguments on 8 might hint at a shift in position but I do not buy it.
If you look at her writing in the original ruling she seems to be very sympathetic to the cause personally but also a strong advocate of the view that the voter rules and thus she is probably a No vote. On the other hand *if* she decides that the original ruling did grant a fundamental right, even if she disagrees with that right, then she would slip to the Yes side. But I’m gonna put her down as a No.
So the ruling comes down to the two remaining votes that supported recognizing same sex marriage rights in the original ruling. Both Justice Kennard and Chief Justice George are the question marks in that they voted for the right to marriage but also seemed to be sympathetic to the idea that the will of the voters is important.
Remember that the original ruling was based on what was contained in the California Constitution at the time and the ruling basically said ‘even if you don’t like this we have to honor what is in the document’. If they conclude that the same standard applies here, one or both could vote to uphold 8 which would give the No side a win.
On the other hand they both seemed very focused on the issue that marriage is a fundamental right under the California Constitution and that could compel them to support the revision vs amendment argument which would keep them firmly in the Yes camp.
So I think basically we have two firm No Votes, 2 firm Yes votes and two where I am not sure. My guess is we’ll see Corrigan vote No and George and Kennard split, which would give the No camp a 4-3 victory and Proposition 8 would stand. Next most likely is an exact repeat of the last ruling with a 4-3 decision for the Yes camp to strike down Proposition 8.
But it could go 5-2 in favor of upholding 8 if both Kennard and George shift over or a 5-2 ruling in favor of striking it down should Corrigan shift.
If they strike down Proposition 8 on the revision theory then the issue is basically dead while a decision to uphold it would likely lead to initiatives every few years.