Legal Experts Puzzled Over California Justice's
Seeming Reversal on Prop. 8
Los Angeles Times
By Maura Dolan
November 25, 2008
Justice Joyce L. Kennard has been a reliable
supporter of gay rights in the past, but last week
she was the only Supreme Court jurist to vote
against hearing legal challenges to the gay-marriage
ban.
Reporting from San Francisco — The California
Supreme Court’s order last week to consider legal
challenges to Proposition 8 contained one surprising
twist -- the name of the sole justice who voted
against hearing the cases.
Justice Joyce L. Kennard, a staunchly independent
if not stubborn jurist, has a lengthy record of
protecting gay rights, including the right to marry,
and often sides with the underdog in rulings.
In fact, her record is so unwavering that many
gay-rights activists and several independent legal
scholars surmised that her vote against hearing the
legal challenges was procedural -- for example, she
might have wanted them to be filed in lower courts
first -- and did not reflect her thinking on the
cases.
But a close reading of the court's one-page order
suggests that gay-rights advocates may have lost a
usually predictable ally in their effort to overturn
Proposition 8.
"It definitely isn't a good sign," said UCLA Law
Professor Brad Sears, an expert on
sexual-orientation law.
After learning of Kennard's vote, he went back
and read her concurring opinion in the court's
historic 4-3 vote on May 15 that permitted gays to
marry. It left him even more puzzled.
Whether a state ban on same-sex marriage is
constitutional "is not a matter to be decided by the
executive or legislative branch, or by popular vote,
but is instead an issue of constitutional law for
resolution by the judicial branch," Kennard wrote.
"Everything she writes in her concurrence is
substantively what she will have to agree to in
order to overturn Proposition 8," he said.
Although it is impossible to know Kennard's
thinking -- justices cannot comment on pending cases
-- others saw reason to suspect that Kennard may not
be buying the argument that Proposition 8 was an
improper revision of the state constitution.
The order said Kennard would hear a new case to
resolve the validity of the 18,000 same-sex
marriages "without prejudice" -- a phrase that
indicates she was open to arguments on the issue.
But she declined to modify her denial of the
Proposition 8 challenges with those same words.
"What she seems to be saying is that she doesn't
think it is worth reviewing," said UC Berkeley Law
Professor Jesse H. Choper.
The legal challenges are novel. Many scholars
believe the court is more likely to uphold the
validity of the marriages that occurred before the
election than to overturn Proposition 8. The court
will decide both questions in a single ruling next
year, probably in the spring or early summer.
Kennard, 67, the longest-serving member of the
court, has never "marched in step" with the other
justices, said Santa Clara University Law Professor
Gerald Uelmen, an authority on the court.
She wrote more dissents during the last term than
any other justice and led the court in concurring
opinions, a sign that she sticks to her views even
when she agrees with the majority on a ruling.
She is viewed as inflexible when it comes to her
principles and refuses to budge on even relatively
minor matters of the law. Analysts have found signs
that some of Kennard's dissents may actually have
begun as majority opinions, suggesting that she
refused to modify them to keep the needed votes.
Her personal and professional life also has been
marked with contradictions and surprises. Former
Gov. George Deukmejian nominated Kennard to the
court after he helped spearhead a campaign to oust
Chief Justice Rose Bird and two other liberals from
the court.
Once at the court, Kennard enjoyed a
behind-the-scenes friendship with Bird.
Kennard voted so often with the late Justice
Stanley Mosk, whose liberal views stood out on the
conservative court, that the pair was dubbed "the
odd couple."
During oral argument, Kennard tends to be the
most vocal justice, sometimes to the visible
irritation of her colleagues. Her questions and
demeanor can signal how the court is leaning.
Kate Kendell, who heads the National Center for
Lesbian Rights, came away from last March's hearing
on same-sex marriage encouraged that gays would
prevail. Kendell cited Kennard's joyous, even bubbly
demeanor.
Kennard's empathy for minority groups may stem in
part from her life story. She was born in Indonesia
to parents who were of Dutch, Indonesian, Chinese
and German descent and suffered an impoverished
childhood, confined to an internment camp in Java
during the Japanese occupation of the region.
A tumor required doctors to amputate her right
leg above the knee when she was in her teens, and
she walks with a prosthesis and a cane.
At 20, she moved to the U.S. and landed work as a
secretary. With a $5,000 bequest from her mother and
scholarships, she started her formal education at
Pasadena City College and earned her law degree and
a master's of public administration from USC.
Now that the court is reviewing Proposition 8's
constitutionality, Kennard and Chief Justice Ronald
M. George, who wrote the May 15 marriage ruling,
will be key to whatever the court decides, said
Santa Clara's Uelmen.
Voting with George and Kennard to overturn the
marriage ban were Justices Carlos R. Moreno and
Kathryn Mickle Werdegar. But only Moreno voted last
week to put Proposition 8 on hold pending a final
ruling.
"I think Moreno will be a solid vote to throw out
Proposition 8," Uelmen said. "George and Kennard are
critical and could be the sticking point."
Despite her vote against the challengers, Uelmen
does not rule out Kennard as a potential supporter
for overturning the initiative. Sometimes justices
vote against hearing a case because they know the
votes are not there to get the result the jurists
favor.
UC Irvine Law School Dean Erwin Chemerinsky, who
has known Kennard for years, said she would vote to
uphold Proposition 8 if she thought the law required
it, regardless of her personal preferences.
"She is a justice who will do what she thinks is
right as to the law without any regard to what the
political consequences are," he said.
