Will the US Supreme Court find that Proposition 8s amendment is unconstitutional?
Well, here’s how I see it. 1- Clearly, there will be lawsuits. There will be a couple of lawsuits challenging whether it was legally placed on the ballot. They will surely fail. 2- Following that, since it is part of the California constitution, that means it is by definition constitutional in CA. 3- So, any lawsuits will have to be federal. 4- Those suits will go to the Supreme Court. 5- The Supreme Court has a way of “getting out” of difficult decisions. If there is any legal messiness in the runup to the SC, they just send it back down, or defer to hear it. 6- Eventually, there will be a suit that makes it up, on the actual issue. 7- The Supreme Court WILL decide that it is unconsitiutional to not let some citizens marry. The only thing that can stop that is a US Constitutional Amendment. If one of those passes, there is NOTHING that can be done, short of passing another one that nulls the first one.
One problem I have with most arguments regarding this issue is that people mistakenly refer to same-sex marriage as “gay marriage,” which really muddies the waters. Marriage is not inherently sexual, and the standard rebuff is that all people, regardless of orientation, have the right to marry someone of the opposite sex. I really think that to gain traction on a legal, technical level, it needs to be approached from a sexual discrimination stance. If a man has the right to marry a woman, then a woman should have the right to marry a woman, and so forth for men marrying men. That is the right that’s currently being impinged, not the right for homosexuals to marry. Unfortunately, while “separate but equal” is often struck down, certain discriminations between the sexes are legal, and the court could decide that this is one of them. It’s important, in any case, for people to understand that while a same-sex marriage ban is effectively discriminating against homosexuals, it is not literal
Yeah, points 1-6 are pretty uncontroversial. If SCOTUS can avoid an issue like this, they probably will, and though there are likely to be dozens of cases which never even make it past the District Court level, someone will eventually get the standing issue right. But point 7 is not nearly so clear. The Court has, historically, been somewhat unwilling to expand the “protected classes” in the Fourteenth Amendment, and neither gender nor sexuality nor sexual orientation is a protected class in the constitutional text. Gender is a “suspect category,” but not the way race is. The argument that Proposition 8 is unconstitutional would have to do with the “constitutional penumbra,” i.e. what certain justices think about what the Constitution “really means”. This is how, for example, we got the Bivens action, an entirely new cause of action which permits individuals to sue for monetary damages on the basis of constitutional violations per se, without any further cognizable injury. The Warren c
Your facts are incorrect in part. Many states have amended their Constitutions subsequent to Roemer v. Evans to prohibit gay marriage. The gay marriage movement’s legal strategy thus far has been not to challenge these amendments on U.S. Constitutional grounds — either on a Roemer basis, a Lawrence basis, or some combination of the two, but rather to focus on getting state high courts to recognize state constitutional rights, and on winning state elections to protect or expand those judicial gains. This has been a sound strategy, because it is by no means certain that the Supreme Court would give the decision they seek. The law which was struck down in Roemer was far broader than Proposition 8 or similar measures, as it purported to deny gays the right to seek any form of protection or benefit as a class from the government. The Roemer decision compelled no specific protection or benefit but said that gays (and, really, everyone and anyone) should always have the right to ask for prot
I’m seriously doubt gjc’s #7 under this court, but yes the court should eventually achieve the composition needed for #7, and the court may avoid ruling on the issue before that time. I imagine that California will nuke that amendment itself well before the court does. Otoh, Florida has passed an amendment banning issuing or recognizing homosexual marriages & civil unions. I imagine this will fall under the full faith & credit clause, but that won’t force Florida to grant same sex unions.
