03/05/2009 04:08 pm ET | Updated May 25, 2011

A Review of the Proposition 8 Hearings

It's not easy standing in front of a panel of judges. And sometimes it's scary when they ask you questions, but if there is one great disappointment about today's court hearing, it was the performance by lawyer for the Attorney General, Chris Krueger.

Of the arguments presented to the Court, two received the most attention: Whether Proposition 8 was a revision or an amendment and, if it is an amendment , does it retroactively invalidate the 18,000 marriages entered into by same-sex couples before the passage of Proposition 8. But the Attorney General had a new, novel argument that could support the overturn of the marriage amendment without requiring a technical discussion of revisions vs. amendments. In fact, its novelty might have made it the most likely winner in the Prop 8 race.

As explained by Attorney General Jerry Brown on this site the other day, the basic premise of the challenge to Prop 8 was that certain elements of the Constitution are so fundamental, their effect cannot be changed without first asking if there is a compelling government interest to justify that change. It borrows language from the strict scrutiny test - applied to race-based discrimination under the Federal Equal Protection Clause.

According to that analysis, the right to liberty, including the right to marry who you choose to love and start a life with, could only be infringed if the government could prove the infringement was necessary.

Makes sense, right?

It at least addresses the problem of permitting majorities to take away things like the right to free speech or assembly from certain minorities.

But when Krueger stood up to make his argument, he could barely get a word in edgewise. He stumbled, didn't finish sentences and, when given the opportunity by one Justice to "continue with his argument," he could not figure out where to begin.

After such an eloquent and courageous brief by the Attorney General, but one that was so different that it needed further argument, it was truly disappointing to see this kind of performance in court.

The frustration was compounded by Justice Kennard's effective pronouncement that she will not support a ruling that characterizes Prop 8 as a revision. Kennard is one of the more liberal justices on the court and is someone who voted in favor of gay marriage in the Re Marriage Cases. She was also one of the Justices who voted against hearing a review of Prop 8 in the first place.

Without Kennard's vote, it is unlikely that the revision argument will be successful. Without good advocacy from the AG's office, it is unlikely that the novel fundamental rights argument will succeed either.

I worry about the future of constitutional equality protections in California.