As reported earlier, Attorney General Jerry Brown submitted his response to three lawsuits made my marriage equality advocates seeking to overturn Prop. 8. The Attorney General:
“Steered clear of taking a position on the validity of the voter-approved ballot measure, which restored California’s ban on gay marriages. Instead, the attorney general argued that the justices must agree to review legal challenges to Proposition 8 to “provide certainty and finality in this matter.”
While Brown’s position is that all the marriages performed before Nov. 4 are still legal, he asked the court not to issue a stay on the gay marriage ban as it would cause further confusion. None of the proceedings today dealt with the issue of the validity of Prop. 8, but rather, whether the court should address the question.
In related news, UC Hastings College law professor Brian E. Gray believes a Colorado case that went to the U.S. Supreme Court may have a better argument for repealing Prop. 8 than the current process-based argument presented in the suits. The case, Romer vs. Evans was over Colorado’s Proposition 2, which barred the state from passing any law which “whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships” are the basis of a claim of discrimination. Gray writes:
Following the enactment of Colorado’s Amendment 2, its opponents filed suit claiming that it unlawfully singled out gays and lesbians as a class to deny them rights that other citizens not only possess but take for granted. These rights include access to housing, government services, public accommodations and public and private employment opportunities without regard to an individual’s race, sex, religion, age, ancestry, political belief or other characteristic that defines each of us as a unique human being. Amendment 2, the opponents argued, therefore denied gays and lesbians the equal protection of the laws, which is a guarantee of the 14th Amendment to the U.S. Constitution.
To the surprise of many, the U.S. Supreme Court agreed.
He argues that Prop. 8 has the same flaws as Prop. 2, namely that “it provides that gays and lesbians — alone among consenting adult couples — shall not have the opportunity to enjoy the rights, privileges and social approbation conferred by the status of lawful marriage” and points to Justice Kennedy’s decision on Romer vs. Evans, where he concluded “a classification of persons undertaken for its own sake, something the equal protection clause does not permit.”
How about we take this to the next level?
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Jon B
There’s one HUGE problem with using Romer v. Evans in challenging Prop 8. If they use Romer, it becomes a matter of Federal Law, and the issue could go to the Supreme Court. I don’t think they (or we) are ready for that yet, especially with Kennedy as the only swing vote declaring in a concurring opinion that neither Romer nor Lawrence pave the way for gay marriage.
ask ena
I am ready for a Federal Law guaranteeing my rights…what the hell’s the problem? If it doesn’t fly this time around at the U.S. Supreme Court, are we barred from trying again?
This state by state nonsense is driving me nuts.
JPinWeHo
Jon B – The U.S. Supreme Court could never get jurisdiction. The writ petition intentionally does NOT ask the CA Supremes to decide that Prop 8 is invalid based on the US 14th Amendment (i.e. Romer). Instead, it is based exclusively on the principal that Prop 8 was erroneously passed as an amendment rather than a revision. The CA Supreme Court will not rule on issues not presented to it. Romer is cited for support that Prop 8 would fundamentally alter the CA Constitution (making it a revision) not for support that Prop 8 violates the U.S. Equal Protection Clause.
Federal cases are cited all the time in constitutional briefs dealing exclusively with state law because the CA constitition and federal constitution share similar concepts – so Federal decisions can be useful for the CA Supreme Court to decide state constitional issues. However – that doesn’t make a CA Supreme Court decision reviewable by SCOTUS.
Review by SCOTUS won’t happen until someone sues in state or federal court and relies on the violation of the federal equal protection or due process clauses explicity, neither of which has been done in the writ petition in California.
JPinWeHo
JonB – misread your post. I agree with you – relying on Romer to hold that denial of gay marriage is (federally) unconstitutional would be a mistake. The Supreme Court (after four years of Bush) is now too conservative to likely find that gay marriage is mandated after the wishy-washy due process analysis in Lawrence.
PJ
Romer could also be decalared invalid because of DOMA. Since Romer was in CO and we are talking CA, Romer may not set a precedent.
DOMA does not work and Congress should never have passed it into law, Clinton should never have signed it and it is in direct conflict with Full Faith and Credit which is one of Bill of Rights.
But then, we all know that there is a zero-sum factor here. If gays are allowed to get married, then there won’t be enough marriage for straight people.
Shaniqua Ubangui
Actually Romer can’t be declared invalid. It can only be overturned by the SCOTUS or a constitutional amendment passed by Congress to provide or deny the right.
The checks and balances of the US Government gives the supreme court to determine the validity of the laws. Congress/Legislative Branch can pass amendments to take care of “loop holes” that their laws do not cover (e.g., the flag burning amendment as flag burning was considered protected speech).
Pragmatist
@JPinWeHo: Yep, agreed. We’ll have same-sex marriage recognized as a federal constitutional right — years down the line, after the composition of the court has shifted.
In the meantime, I think we Californians had better figure out a way to reverse Prop 8 through the initiative process, or just be willing to wait a long time. The revision/amendment argument is legally compelling, but I think the Court will ultimately punt and let Prop 8 stand.
Bruno
I agree this probably won’t end up at SCOTUS desks anytime soon, but I wonder if it wouldn’t be such a bad thing to present this argument to that court. After all, mostly Republican judges ruled in favor of gay marriage in California…who’s to say the SCOTUS wouldn’t see the same logic, especially with the CASCOTUS’ ruling in hand?
The Gay Numbers
RE US St Ct
This is why Obama being elected was crucial. he will have to chance to appoint several dozen judges to the federal bench, and possibly 3 or 4 justices to the S Ct during his first term alone.
JPinWeHo
@Bruno. Comparing the conservatives judges on the CA Supreme Court to the conservatives on the SCOTUS is like comparing apples to oranges. California conservatives would be liberals in the some parts of the country. The current make-up of the SCOTUS is much more conservative – and they certainly don’t have to (and likely won’t) use the CA marriage cases as persuasive. It would be tragic to have the SCOTUS rule that sexual orientation is NOT a suspect class or that it is only subject to rational basis review for equal protection.
The only reason we have a shot at having Prop 8 overturned is because the CA supremes held that sexual orientation was a suspect class and that marriage was a fundamental right. If the SCOTUS rules that sexual orientation is not suspect – we may have to wait a very, very long time before the LGBT community has equality – and we may, in fact, lose some of our hard-earned rights in the meantime.
InlandEmpire
Proposition 8 is a revision because it changes not only same-sex marriage rights but also opposite-sex marriage rights. It has added a derived requirement that opposite-sex couples can not marry. Proposition 8 has never removed the Equal Protection clause. In the Re Marriage Cases the remedy choices were to eliminate all marriages or allow same-sex marriages.
From page 119 (http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF):
“A court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that body recognized that unequal treatment was constitutionally impermissible.”
If Proposition 8 is ruled valid, the court has no choice but to invalidate all marriages since Prop 8 denies extending it to same-sex couples and the equal protection clause requires equality.
Pragmatist
@InlandEmpire:
InlandEmpire,
Not so fast. Assuming that Prop 8 were a valid amendment, I think most courts would simply interpret it as a modification to the Equal Protection Clause. (One commentator said, strikingly and I think accurately, that Prop 8 “puts an asterisk next to the Equal Protection Clause”.)
I don’t think it’s really a problem that the specific language contained in Prop 8 seems at odds with the rest of the Constitution. Courts encounter that kind of contradiction in everyday statutory interpretation. They usually find that the later enacted provision was intended to repeal or modify the earlier enacted provision.
Inlandempire
See: S168066 ROBIN TYLER, et al., Petitioners v. STATE OF CALIFORNIA’s Amended Petition Page 6 and 7. Gloria Allred is using the same argument that if Prop 8 is legal, then under the equal protection clause either all couples should be able to marry or none of them should be able to marry.
http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/20081105135855223.pdf