Justice Corrigan asks whether the State’s position is that an initiative that alters the right of a suspect class is a revision. Krueger clarifies that the State’s argument is that an amendment cannot take away a right based on a suspect classification (sexual orientation) without a “compelling interest.”
This is a different argument from the one that we have made, although the two arguments are compatible – the Attorney General is in a unique position in this case, and is better able to make broader arguments like this one. As Petitioners, we need to be very careful to make arguments that adhere closely to the precise language of the California Constitution.
Krueger begins to explain the State’s theory in more detail: Californians have inalienable rights, given to us by our Constitution. The right to marry is one such right. Kennard asks: does “inalienable” mean, can never be changed or modified? This is an important question because the Court’s precedents do indicate that inalienable rights – such as the right to life that was at issue in Frierson, the death penalty case – have been modified by the people through the amendment process in the past.
Justice Werdegar asks, can the people differ from what the Court did last year in the Marriage Cases? Justice Corrigan clarifies that the real question from the Court is, assuming the people can amend the Constitution, what are the limits on that ability to amend? And Chief Justice George also asks, what does “inalienable” mean?
These questions are all aimed at eliciting a clear articulation of what kind of rule the State believes the Court should apply here. It’s important to remember that in deciding this case, the Court will need to issue an opinion that provides guidance in future cases as well, and to do so, it will need to apply (or perhaps establish) a rule that will work in those future cases.