Saturday, January 10, 2009

Proposition 8 - Two Panels at AALS

The AALS Conference on Friday featured two panels discussing California's controversial Proposition 8 (limiting marriages to those between a man and a woman) passed last November and being challenged before the California Supreme Court, see previous posts here and here.

The first panel was the AALS Executive Committee Program entitled Democracy’s Dilemma: The Case of Proposition 8, moderated by Rachel Moran, the next President of AALS.

William Eskridge of Yale Law School provided one version of the history of a gay struggles for marriage and other civil rights. Nancy Polikoff of American University Washington College of Law provided a different version of the history of gay/lesbian struggles for family plurality and other rights, based on some of the arguments in her new book, Beyond (Straight and Gay) Marriage: Valuing All Families Under The Law (see my review in Women’s Review of Books here).

Daniel Rodriguez of University of Texas School of Law interestingly predicted that there was “virtually no chance” of the California  Supreme Court invalidating Proposition 8.

Steven Smith, University of San Diego School of Law,  stated he was making a “special appearance” because he was “boycotting” the AALS conference based on the AALS decision to “boycott” the Hyatt. Smith admitted he had not developed a sophisticated analysis of appropriate boycott decisions, but strongly felt that in this situation - - the owner of the Hilton having made contributions to a cause such as Proposition 8 in which people of good faith could reasonably differ - - - a boycott was not justified.

Bruce Cain, of UC-Berkeley’s Political Science Department, provided an excellent analysis of the political ramifications of one of the legal issues before the California Supreme Court  - the difference between an “amendment” and a “revision” of the state constitution.  Cain was interested in looking at the issue for state constitutions in general, positing a theory of differences between revisions of rights and revisions of institutions.  He stated he was worried about drifting towards a majoritarian view of rights.

A few hours later, another panel on Proposition 8 occurred.  Entitled Proposition 8, Legal Challenges, and the Future of Marriage Between Same-Sex Couples, this panel was a “hot topic” submission and less ideologically diverse than the earlier panel.

Moderated by Marisa Cianciarulo of Chapman University School of Law, the first speaker was M. Katherine Darmer, also of Chapman, who provided an “on the ground” perspective of organizing in Orange County against Proposition 8.

Erwin Cherminsky, Dean at the new UC-Irvine School of Law, spoke about the legal arguments in the California Supreme Court, regarding the differences between amendments and revisions, providing a quick rehearsal of some of the cases and an outline of the doctrine.   He also discussed the problem with retroactivity (the status of the same-sex couples who married after the California Supreme Court decided The Marriage Cases in May and before Proposition 8 passed in November).  Cherminsky ventured a few predictions based on his knowledge of the California Supreme Court Justices, and he was not as certain of the outcome as Daniel Rodriguez  on the earlier panel. 

Clifford Rosky of University of Utah School of Law spoke about the “political powerless” factor used to determine suspect class or judicial protection, linking it to the Proposition 8 controversy and the same-sex marriage cases in Connecticut and New York.  And William Eskridge, who also spoke at the morning panel, provided an overview of the types of constitutional theories that the California Supreme Court might use in deciding the case.

Both panels were a good mix of law and politics.  The panelists raised the specter of a recall of California Supreme Court Justices as happened to Justice Rose Byrd as well as the effect of a California decision for the rest of the nation.  The panelists also made predictions about the eventuality of same-sex marriage given the demographics of support for it amongst younger voters.

A good source for those interested in keeping up with the litigation is The California Constitution, a blog by SF attorney Steve Mayer.


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