Feelings mixed on recalling justices
by Matthew S. Bajko
While there appears to be consensus on putting repeal of Proposition 8 on the 2010 ballot, there is less agreement on launching a campaign to oust the six justices who voted to uphold the anti-same-sex marriage initiative.
All appointed by Republican governors, the first of the sextet to seek reinstatement to their seats on the state Supreme Court are Chief Justice Ronald George, who wrote the majority opinion upholding Prop 8, and Justice Ming Chin, who joined with the majority. Unlike George, who authored last year's 4-3 majority ruling granting same-sex couples the right to marry, Chin was part of the minority opinion. Prop 8 overruled the court's decision last May but allowed those 18,000 marriages that did occur to remain legal.
The third justice who will be on the 2010 ballot is Carlos Moreno, the lone Democratic appointee on the court who was the sole vote for invalidating Prop 8. Last year Moreno joined in the majority opinion striking down the state's anti-same-sex marriage statutes as unconstitutional.
Numerous LGBT leaders and political strategists told the Bay Area Reporter this week they would not support a coordinated campaign to oust any of the justices. Openly gay state Senator Mark Leno (D-San Francisco) is among those who feel doing so would be ill advised.
"This is a shameful decision and one which will haunt every one of those six justices to their last day. But we have limited resources and limited goodwill," said Leno. "The only thing they said is for us to focus those resources and that goodwill in convincing a majority of Californians to support marriage equality."
City Attorney Dennis Herrera brought forward one of the three cases the justices decided Tuesday and called the court's decision "disappointing." But he seemed to oppose the notion of recalling judges when he said at a press conference, "Courts deserve respect for the work they do. We don't vilify justices we disagree with."
Geoff Kors, executive director of Equality California, said the statewide LGBT advocacy group had no position on recalling the justices. But he added that, "We should respect the judicial process even when we strongly disagree with it."
National Center for Lesbian Rights Executive Director Kate Kendell made a similar argument against backing any recall attempts against the justices. Doing so, she said, would run counter to the community's long held belief that judges should not be swayed by politics.
"I respect an independent judiciary and respect the justices who are on our Supreme Court even though on a day like today I am profoundly disappointed and disagree at a molecular level with what they have done," she said. "As often as it happens when we get a ruling like this that hurts us, we get a ruling that helps us. If we are committed to having justices independent from the visceral political process, that means being able to make and decide cases in a way that the majority – in this case the LGBT community – disagrees with."
One local political consultant, speaking on background, said any recall attempt of the justices would have no bearing on whether same-sex couples could marry.
"The fastest way to restore marriage equality is not to recall justices but to win back those rights at the ballot box," said the person, who predicted right-wing groups would likely mount a campaign to oust Moreno off the court.
Not everyone in the LGBT community agrees with such reasoning. Debra Walker, an out lesbian running for District 6 supervisor next year, said she wholeheartedly backs removing from the bench all six justices who upheld Prop 8. She vowed to campaign against George and Chin in 2010.
"I think anybody who values democracy and civil rights should do the same. I won't support any of the justices who didn't support equal rights," said Walker, who was arrested Tuesday afternoon for blocking Van Ness Avenue in protest of the court's ruling. "I am not going to support the six justices who voted to say a small majority – 52 percent of voters – can take away a minority's rights. I don't think anybody who supports civil rights should be supporting these justices."
Another out candidate expected to run for supervisor in District 8 next year, Deputy District Attorney Rebecca Prozan, disagreed with Walker. A co-chair of the LGBT attorney group Bay Area Lawyers for Individual Freedom, Prozan advised against a recall campaign against the justices.
"I don't think it is the best use of our time, money, and energy," said Prozan, who married her wife last year and supports seeking repeal of Prop 8 in 2010. "I think the best use of our time and effort and money is to make sure we pass a marriage equality initiative."
After the 2010 election, the next chance voters will have to either retain or oust justices from the state's highest court will come in 2014, when Kathryn Werdegar, who voted to allow same-sex marriage but voted to uphold Prop 8, and Marvin Baxter, who was in the minority against allowing gays to wed but joined the majority in upholding Prop 8, are on the ballot.
The last two justices, Joyce Kennard, part of the pro-same-sex marriage majority, and Carol Corrigan, who joined with the minority last year despite expressing in a dissenting opinion her belief gays deserve marriage rights, will be on the ballot in 2018. Both justices voted to uphold Prop 8.