http://www.caivp.org/article/p.....osure-laws

There really are only two ways:
1. To declare that amendment 8 is incompatible with other parts of the constitution, because it conflicts with the equal protection guarantee, and hence is invalid; or
2. To rule that the state may not recognize marriages of gay couples, and may not recognize marriages of any other couples, either.

Because of the equal protection guarantee, any right that is denied to anyone must be denied to everyone. Hence, if gay couples may not marry, then no couples may marry.

I suspect that choosing alternative 2 would result in a mob lynching of every judge who signs the decision. So, even if by some circuitous reasoning, they will find a way to arrive at alternative 1.

But the Prop 8 people now say the state of CA shouldn’t recognize the marriages that have already been preformed but other states that do recognize them will. Well I think that then says this is not specifically retroactive but it is still working in a retroactive manor. How would that be possible without this being some strange revision.

I think they have to decide about the existing marriages first and to do it in our favor. If that happens then our odds go up and I feel fairly confident that our existing marriages will be respected and honored.

I’d be interested to see who will appear to argue the case. I’m assuming that with three hours, a number of the amici will appear.

I’m not entirely familiar with the personalities on the Court, but I suspect that Barnett’s analysis is a little too conservative, while Brown’s argument strikes me as a non-starter.

First, the Court obviously can revise its own precedents on what constitutes a “revision” of the state constitution. It is bound by its own prior precedents only to the extent that it wishes to be or that stare decisis requires. And this has got to be an uncomfortable place to be bound by stare decisis. After all, marriage is a fundamental right, and allowing a simple majority vote to overturn equal protection principles involving a fundamental right has got to *feel* wrong to members of a court who were willing to interpret the state constitution to require same sex marriage before the Propp. 8.

Second, Brown’s argument creates a legal morass. How are you supposed to determine whether a proposition was passed for a compelling purpose? Look to see whether each voter has a compelling interest in mind? Do you look to the “purpose” of the Proposition in the filing papers? (Is there such a thing?) Do you look at the arguments aired in the run-up to the vote? In essence, Brown is asking the Court to review Prop. 8 under the standard that it would use to review the constitutionality of legislation (e.g., at the federal level for legislation that affects a suspect class of persons, we ask whether the legislation is narrowly tailored to promote a compelling government interest). It strikes me as non-sensical to do as Brown asks when the Proposition changes the very constitution from which the Court derives its powers. After all, presumably *by definition* Prop. 8 moved the goalposts on what discrimination is allowed under California law and what isn’t.

Logically, the only challenges to the enforcement of Prop. 8 are:

1. It didn’t really pass (i.e. a recount);
2. It was procedurally flawed (i.e., it wasn’t properly before the voters);
3. It violates a higher standard of California law (i.e., it was a revision, not an amendment); or
4. It violates federal law and so cannot be enforced (this is not a question I would like any federal court to have a go at, until at least one or more of Scalia/Thomas/Roberts/Alito is off the U.S. Supreme Court).