CA Supes Seem Split On Gay Marriage, Loss For Gay Side Predicted

With anti and pro-gay demonstrators outside, in yesterday's arguments the California Supreme Court seemed to be split in their opinions on marriage equality, with some legal experts predicting a loss for our side.

Dale Carpenter, a professor at the University of Minnesota Law School, issued this opinion:

[T]the most likely result is that the gay-marriage litigants will lose 4-3 or possibly 5-2. I defer to those more expert about that court, but based on the oral argument I would count Associate Justices Baxter, Chin, Corrigan, and Werdegar as likely votes against the petitioners. These justices were much more hostile to the petitioners' arguments than to the state's. I would count Chief Justice George and Associate Justice Kennard as likely votes for the petitioners. They were more hostile to the state's arguments and often intervened in helpful ways for the petitioners. I'm uncertain about Associate Justice Moreno, though he seemed slightly more skeptical toward the petitioners.

This prediction assumes both that (1) the dominant tone and substance of the comments from an individual justice actually reflect his or her views about the case and that (2) the justice will not change his or her mind post-argument.

From the SF Chronicle:

Attorneys for the conservative groups argued that the court should not have a role in defining marriage. They pointed to Proposition 22, passed by voters in 2000, which barred the state from recognizing same-sex marriages performed outside California.

Glen Lavy, an attorney for the Prop. 22 Legal Defense and Education Fund, called the initiative process the "ultimate expression of democracy."

"One of the things the petitioners seem to assume is that when someone argues there should be a change in the law, the people have no power to say no," Lavy said. "The people are the ultimate arbiters of public policy."

He said marriage is by definition an opposite-sex relationship, and argued that therefore, the law doesn't stop gays and lesbians from marrying - just from marrying someone of the same sex.

You can watch a replay of the nearly four-hour long hearing on CalChannel.com. Rex Wockner described it as "riveting." I'd agree.