- Several justices were very skeptical of the challengers’ central argument that Prop. 8 is an invalid “revision.” The justices seemed hesitant to overturn a direct act of the people. Justice Joyce Kennard specifically disputed the notion that the Court must strike down Prop. 8 just because they previously found a right to gay marriage in the state constitution as it existed prior to Prop. 8. Only Justice Carlos Moreno seemed determined to side with the Prop. 8 challengers.
- The justices were not buying the Attorney General’s novel argument that Prop. 8 should be struck down for the alternative reason that, even though not a “revision,” it violates the inalienable right to marry.
- Justice Chin questioned whether the state should eliminate the concept of civil marriage entirely, leaving only civil unions or domestic partnerships available to all couple, heterosexual or homosexual.
- The justices seemed very unlikely to hold that Prop. 8 was retroactive so as to invalidate the same-sex “marriages” entered into between its decision last summer and the passage of Prop. 8 in November.
PJI President Brad Dacus commented, “Of course, we can never be certain how a court will rule until the decision is actually issued, but today’s arguments were very encouraging for those who worked so hard to ensure the passage of Prop. 8.”