posted by Kaimipono D. Wenger
With a 52-48 edge at last count and over 96% of ballots in, it looks like Prop 8 is going to pass, ending same-sex marriage in California.
One friend asked, is there a way to fight this? I really don’t think there is, though legal fights are definitely happening. According to multiple news reports, the ACLU has filed a writ seeking to have the proposition invalidated, based on the revision/amendment arguments that were made a few months back. (That is, that big changes like this, which affect fundamental rights, need more than a simple initiative.)
In addition, news outlets are reporting that Gloria Allred will be filing a lawsuit making controversial legal claims (the exact nature of which is not explained); that No on 8 has claimed that a large number of ballots remain uncounted; and that the San Francisco city attorney will file a suit to block the proposition. Gavin Newsom will speak to reporters about it soon.
Are there good legal arguments for disregarding or undoing Prop 8? I don’t know that there are.
One line of argument I’ve heard is that the proposition goes too far for an initiative. It makes big enough changes in the constitution — affecting a fundamental right of a protected class — that it would require more. But that very argument failed just a few months ago.
Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.
And finally, the DailyKos speculation that the amendment may itself be unconstitutional is, I think, just crazy talk. The constitution cannot, by definition, be unconstitutional, can it? (Of course, it could be struck down if it was found to violate the U.S. constitution. I’m not holding my breath on that one — I don’t think there’s any chance that the Roberts court would rule that way.)
On the bright side, marriage and gay-rights advocates still have much to cheer. I don’t think that the proposition overrules the other holdings of the Marriage Cases — specifically and importantly, that sexual orientation is a protected class. Also, it’s unclear whether the proposition undoes marriages that were validly entered into during the last several months, and I think the stronger argument is probably that it does _not_ undo those marriages. (The Cal Attorney General agrees, though this probably won’t stop the lawsuits.)
Also on the bright side for same-sex marriage advocates was the drastic decrease in public support for the limitation. In the past ten years, support for this kind of ban has dropped precipitously, from 61% (Prop 22) to a bare majority of 52% (Prop 8). If that trend continues, advocates won’t need to go to court. They can simply bring their own proposition ten years from now, and watch it pass with flying colors.
This release at Lambda describes the legal argument. Significantly, they point to an earlier 1990 initiative which _was_ found unconstitutional. So maybe it’s not crazy talk to suggest that the amendment could be itself ruled unconstitutional. Still, it seems like a stretch.