Prop 8 Re-Redux
By now we all know that the California Supreme Court has ruled that Proposition 8 is constitutional, but that existing same-sex marriages shall stand. It was probably the correct legal decision, though not the correct moral one.
I'm posting to share this link: Today, Ted Olson and David Boies filed a federal equal protection claim challenging the validity of Proposition 8. While sexual orientation is not a federally recognized suspect class, it is recognized in California, and that appears to be the thrust of today's federal claim.
Whether this marks the beginning of a sea change in equal protection jurisprudence obviously remains to be seen. But if so, you heard it here first.
I'm posting to share this link: Today, Ted Olson and David Boies filed a federal equal protection claim challenging the validity of Proposition 8. While sexual orientation is not a federally recognized suspect class, it is recognized in California, and that appears to be the thrust of today's federal claim.
Whether this marks the beginning of a sea change in equal protection jurisprudence obviously remains to be seen. But if so, you heard it here first.
Labels: Prop. 8
posted by Patrick Bageant at 8:11 PM
11 Comments:
For a long time, the big gay-rights groups have avoided making a federal claim because of a profound fear that the Rehnquist/Roberts Court could give us another Bowers.
At least it's Boies and Olsen, who are at the top of their game. But I'd feel better if Sotomayor was the new fifth vote, not just shoring up the minority.
Maybe by the time this case works its way up there (if it does) Sotomayor will be shoring up the majority? Fingers crossed, anyway.
Patrick, I'm sure you're talking about some kind of complete intellectual conversion on the part of certain justices (like Paul on the road to Damascus), and not some kind of misfortune--right?
Retiring is hardly a misfortune.
Don't you bigger fish to fry than speculation about my thoughts? :)
But since you wonder, may I humbly submit that while the big one surely qualifies as an "intellectual conversion," Matt is correct: I contemplated retirements.
Contrary to the tone of Olson's complaint, the recent opinion makes clear that Prop 8 only changed whether the term marriage may be applied to same-sex unions. If he's concerned about the rights being substantively different (e.g. a property tax exemption he mentions), then he should sue to have those rights apply to gay couples as well.
"By its terms, [Prop. 8] refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored, Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship." (slip opinion at 36-37 (citations omitted)).
Are you saying there's a free speech argument here? I mean, as the majority read Prop 8, Prop 8 says: "You, gay person, may not use the word 'marriage,' to describe your relationship. You may use any other word, and you may have the relationship, but you may not use 'marriage.'"
That sounds like a restriction on speech to me. Thoughts?
Matt, I'm not sure I follow. If you don't meet certain requirements, the state will not issue you a Driver License. That doesn't raise 1A issues because you are now forced to identify yourself as unlicensed. In fact, you can still identify yourself however you want. The state will just refuse to recognize your own self-identification.
* If you don't meet certain requirements, the state will not issue you a Driver's License.
Fixed.
Armen, I think a more apt analogy of the point I was trying to make would be this: "You meet all the requirements to be a driver in the state of California, and California will confer upon you all the benefits of being a driver. But because you're from out-of-state (e.g., Idaho) - or based on some other arbitrary classification - you must refer to it as a 'driver's license' and not a 'driver license.'"
I mean, that's essentially what the court has interpreted the voters of California to be doing. At least that's how it appears to me.
But that's essentially EVERYTHING. For the past year, the same illiterate from Idaho could not call himself a Resident. There's no 1A claim.
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