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Prop. 8 foes puzzled by jurist's seeming reversal

November 25, 2008|Maura Dolan | Dolan is a Times staff writer.

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.

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maura.dolan@latimes.com

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