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While millions of absentee ballots are still being counted, and LGBT groups have yet to concede defeat on Proposition 8, odds are that the proposition restricting marriage to one man-one woman has passed. While the results thus far show that a slight majority of Californians (approximately 53%) voted in support of the proposition, the question now occupying legal scholars is simply, is that enough? Proposition 8 changes the California Constitution so that same-sex couples no longer have the right to marry. While it is clear that the California Constitution can be altered in some ways by a simple majority vote of the populace, it is far from clear that this kind of change - identifying one group among many similar groups and taking away a right given to all other groups - can be accomplished through a bare majority. The NCLR, ACLU and Lambda Legal brought this issue before the California Supreme Court as soon as Proposition 8 was certified for the ballot. However, the Court felt that the issue was not yet ripe since it was possible that the election itself would make this issue moot. That did not happen, the three groups have again filed with the Court a writ asking that Proposition 8 be rejected as an impermissable revision to the California Constitution. Read the petition at http://www.nclrights.org/site/DocServer/CampaignPetition.pdf?docID=4321.
Do you think the opponets of Proposition 8 have a good case?
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If you want to see what libertarians have to say about this issue (and honestly, deep down you always want to know what libertarians are thinking) be sure to check out The Volokh Conspiracy (http://volokh.com/), a blog run by several libertarian leaning law professors. First Amendment and Criminal Law professor Eugene Volokh has lengthy posts on what happens to those couples married before Prop 8’s passage here (http://volokh.com/posts/1225907782.shtml), and on the Amendment vs. Revision issue here (http://www.volokh.com/posts/1225923130.shtml). University of Minnesota professor Dale Carpenter chimes in on Amendment vs. Revision here (http://volokh.com/posts/1226036505.shtml).
Sorry about the cluttered post, but I’m just an unfrozen caveman lawyer and embedded linking confuses and frightens me. Maybe some day I will figure it all out.
The opponents of Prop 8 have precedent, somewhat similar to this situation, that has already been adjudicated by the United States Supreme Court. Please see Romer v. Evans, 517 U.S. 620 (1996). In Romer, the court stated that a voter referendum passed with an impetus based on discrimination is unconstitutional.
The Romer v Evans case is an interesting idea, but I think you read the case more broadly than I do. After all, the Court did find discrimination using only a rational basis test, right? (I think that is right . . . it's been a while since I read it). And on rational basis, the current Supremes could distinguish Romer without overturning it - always the preferred course. And then there is the fear that this Court won't sweat overturning Romer, so do GLBT groups want to make bad law? I don't do Con Law (I am too chicken hearted), but even for my large commerical clients, who is sitting on the court, and what circuit you are sitting in, is something you consider on appeal. Long term players play to win the war, not the battle. And this Court may not be where they want to go to win the war.
You are right to the extent that I do read Romer broadly. However, it is important to note that the opinion was written by Justice Kennedy. He uses strong language amd he is the current swing vote in the court. The major distinction between Romer and Prop 8 is the amendment in Colorado struck down laws passed by municipalities where as Prop 8 struck down a judicial opinion. In my opinion, I think judges agree on one thing: they intrepret the law not the people.
(This is DoneThat - weird issues with signing in today)
I think we may have to agree to disagree on this one, though I like your more hopeful attitude. Kennedy is still on the Court but other spots have changed and at best there would be 5-4 vote striking down prop 8. More fundamentally though, Kennedy used strong language about a constitutional amendment that was so broad as to be almost incomprehenisible. (No law/rule could find gays to be a minority, offer any quotas, or indeed offer any protection from discrimination at all based on that status). It was the stunning breadth of the amendment that led Kennedy to conclude that it could be rejected on a "rational basis" standard because no reason proferred could support that breadth, and so the true reason must animus, and that lacks a rational relationship to legitimate state interests. Prop 8 is much more narrow and finding a rational relationship here will be a really different task than in Romer.
I think the states are on their own on this issue, at least for a while. And it will be interesting to see the briefing on Prop 8 now that it sounds like the CA Supremes will hear it in the first instance.
The briefing will be interesting. The questions presented to the court are as follows; (a) Whether Prop 8 is a revision or an amendment by extratextual means? (b) Whether it violates the separation of powers? (c) Whether it nullifies marriages entered preceding its passage?
As to issue (a), there is a case that is a good starting point in understanding the CA constitution McFADDEN v. JORDAN 196 P.2d 787 (1948). Also, there is a decent law review article on the issue of state constitution and voter referendums THE REVISION OF AMERICAN STATE CONSTITUTIONS: LEGISLATIVE POWER, POPULAR
SOVEREIGNTY, AND CONSTITUTIONAL CHANGE 75 Cal. L. Rev. 1473 (1987). Last, even though it may be a stretch, I'd look at Cal. Civ. Code. 3509-3548
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