Remeber Loving vs Virginia?

[deoxyribonuclease]

http://en.wikipedia.org/wiki/Loving_vs_virginia

This is the case that struck down the law that banned interracial marriage.

To the lawyers out there: do you think the SCOTUS can strike down the ridiculous Prop 8 amendment?

[LeftCoast]

1. They should, but with the current USSC I don't think it would happen

Too many RWers on the court.

[eyesroll]

2. This Court? Sadly, probably not.

The problem is, the Court has not recognized sexual orientation as a protected or suspect class, so the bar for constitutionality on equal protection grounds is ridiculously low.

There's a slightly better chance of this amendment getting knocked down on procedural, rather than equal protection, grounds, but I haven't looked into it too much. (I should add: I'm a 3rd year law student, not a lawyer yet, and not in CA, so I'm not familiar with procedural requirements there.)

[Kelvin Mace]

3. Not unless you replace

two or more of the following:

Scalia, Thomas, Roberts, Alito, or Kennedy.

Scalia, Thomas and Kennedy should be impeached for Bush v. Gore.

[Eryemil]

6. Bad thoughts bad thoughts bad thoughts bad thoughts...

[Ms. Toad]

4. It can - but the time is not yet right.

The principles are the same - although part of a state's constitution has a slightly higher bar to strike down than just a state's law.

The problem is that the votes on the court are not yet there. It will be far harder to overturn a bad decision in the future if we push the issue now and get a bad decision that must be overturned.

There are already many couples (my partner and I included) which are in a position to file this case today. Personally, we are waiting until (1) the composition of the court is more ready to nudge the law forward or (2) we have an extreme personal need that outweighs the bad that might be done by a bad decision - in which case we might be selfish.

By way of example, Roe v. Wade is still hanging on by a thread, but has not been overturned outright - if it were not for the principle of stare decisis (roughly - you don't overturn prior court's decisions), Roe v. Wade would have been gone long ago with the current composition. I do not want a bad decision regarding the constitutionality of state's constitutions or laws and my marriage that will hang on by a thread for decades to come.

I would rather wait a few more years (my guess is fewer than 10) for the right time to get a good decision. There will be marriages that have not blown up the states in which they exist, the younger (GLBT friendly) voting population will have grown, and more states will add their own marriage statutes. It is rapidly becoming a different world. (I know - still not rapidly enough - our daughter turned 18 this year without being able to create a legal relationship with her second mother, which will forever be a deep sadness for us.)

In the mean time, the California vote was close enough that I hope Californians bring a repeal issue to the ballot at the first opportunity - I am confident that very soon a repeal would be successful (much sooner than a repeal would be successful in my home of Ohio.)

[mitchtv]

5. Expect no help from your party

And they can expect none from me

[Ms. Toad]

7. That was my motto this election.

In 2004, I went knocking on doors for John Kerry for months, spent election day rounding up the voters I had identified, and standing at the polls. That was the year Ohio passed the marriage discrimination amendment.

This year, I sat quietly at home. Had a different candidate won the Democratic primary (Kucinich - or even Edwards whose posture I viewed as open to learning), I might have been motivated - but with Obama's tepid support for my marriate clear I could not bring myself to do a task I don't particularly enjoy and am not particularly good at with the expectation of hanging out under the wheels of the bus as the victory parade drove by.

[bluedawg12]

8. So a repeal of Prop 8 is possible under Calif. law? n/t

.

[Ms. Toad]

9. I don't know California law, specifically,

but generally speaking anything that can be voted in as a ballot initiative can also be amended or voted out by ballot initiative.

I am intrigued by the lawsuit that was filed this afternoon - apparently there are two ways to amend the California constitution. Minor changes can be made by popular vote (amendments), but more substantial changes (revisions) have to be made by a super-majority legislative action (there may be more - I was skimming by the time I got to the details). As I understand the complaint, the litigation builds on the last (winning) case and says, essentially, that this change is too major because it impacts rights the courts have already decided are fundamental constitutional rights and to enact such a change would be a revision, not "merely" an amendment.

I haven't researched the case law to see if that kind of argument has been successful before - but I like the argument. It gives GLBT folks in California another shot at their own Supreme Court in a way that doesn't give the opposition a shot at making bad law in the U.S. Supreme Court. (If a case is decided entirely on state principles, the feds have to keep their noses out of it.)

[bluedawg12]

10. Thanks! Sounds reasonable to me.

The ballot initiative did impact on a previous Court ruling and the scope is very broad, asin Constituional rights.

Boy, I hope for my Calif. brothers and sisters the lawsuits prevail.