CA Voters - What you can do to repeal Prop 8 in 2010

[essentialsaltes]

Sign the Petition to get it on the ballot. Even if all you can do is to print out the PDF, sign it yourself, and mail it to their offices, that's a stamp well spent.

Comments

Re: 2012

[essentialsaltes.livejournal.com]

Yes, it's true... this man wastes more time on the internet than ladyeuthanasia.

I read every jot and tittle of what you wrote. I think the part that confirms my instinct is... That last bit is the tricky bit -- also known as "the bit that lets judges do whatever the hell they want" -- because it depends on the specific circumstances of the law in question.

The Supremes are neither required nor forbidden to rule in any particular way, but custom and the make-up of the current court suggest to me that overturning 8 is a longshot. Since I have my legal team on the case... if they did overturn prop 8, how widely would that apply? Would that immediately legalize gay marriage in every state, or would it only apply to CA's specific proposition, or to some federal district or arrondissement or whatever they're called?

Re: 2012

[ian-tiberius.livejournal.com]

if they did overturn prop 8, how widely would that apply? Would that immediately legalize gay marriage in every state, or would it only apply to CA's specific proposition, or to some federal district or arrondissement or whatever they're called?

It would depend on how their decision was written. Lower courts are supposed to follow the interpretations of the higher courts, so if SCOTUS handed down a decision written as shad_0 would write it, declaring that the equal protection clause now applies in full force to sexual orientation, the lower courts would have to abide by that. That does not mean that the next day a same-sex couple in Mississippi could go down to the courthouse and get a marriage license, but it does mean that they could file a lawsuit in federal court to get the Mississippi ban on same-sex marriage overturned, and that court would be obligated to follow SCOTUS' line of reasoning.

More likely (in the still-unlikely event that SCOTUS overturns Prop. 8) they would write a more narrowly-tailored decision that picked a nit of some kind with Prop. 8 specifically. The Court generally tries to avoid overturning the social order, even when the law is clear.

shad_0's most recent comments deserve far more attention and consideration than I can give them at this particular moment (I'm on deadline at work), but I'll try to respond intelligently later today or tomorrow. Whether or not I succeed remains to be seen...

Re: 2012

[shad-0.livejournal.com]

As long as we're engaging in wild speculation:

If the challenge to Proposition 8 makes it to the U.S. Supreme Court, I am supremely confident that Scalia and Thomas will want to uphold it (and that Rehnquist would have sided with them). I speculate that Roberts and Alito are likely to join Scalia and Thomas, based on the fact that they are conservative Bush appointees.

I suspect that Stevens, Ginsburg, and Breyer will want to overturn it (and that O'Connor would have sided with them), but -- just as with the California Supreme Court -- I'm not confident that the Justices will vote to overturn the law just because they want to overturn it. (Nor should they, if there is no legal basis for it.) Even if they were to do so, they'd need to persuade both Kennedy and Sotomayor to join with them in order to squeak out a 5-4 decision throwing out Proposition 8. Although Kennedy often votes with the conservative bloc, he did author both Romer v. Evans and Lawrence v. Texas, both of which applied the equal-protection clause to sexual orientation. Sotomayor is a wild card; although she is an Obama appointee, she has not yet authored an opinion since joining the Court. (Hey, it's only been a couple of months!)

My prediction is that Scalia will write the majority opinion, declaring that the U.S. Constitution contains no right to marry a person of the same sex. That's what SCOTUS typically does when it rejects an equal-protection challenge -- frames the issue as whether the Constitution contains an express right to engage in the specific conduct (as in Bowers v. Hardwick, in which the majority wrote that there was no constitutional right to engage in sodomy). The opinion will probably also trot out the arguments that, if the Constitution really guaranteed the absolute right to marry whomever you choose, then the government could not lawfully prohibit bigamy or incest. The minority opinion will likely come from Ginsburg or Stevens.

If the Court does vote to overturn Proposition 8, it is entirely possible that the opinion may not, in fact, determine that sexual orientation is a suspect class. The Court could hold that disapproval of homosexuals is not a valid governmental purpose, and that the supporters of Proposition 8 have failed to articulate any permissible purpose that the constitutional amendment actually serves -- in other words, that Proposition 8 fails to pass even the easy rational-relationship test. That'd be nice... but, again, I don't see it. (And I know for a fact that both Scalia and Thomas believe that "moral disapproval" is an entirely legitimate basis for a law, and moreover that Thomas does not even believe that the Constitution contains a right to privacy.)

Alternately, the Court could hold that the right to marry is so fundamental that any law unduly burdening that right is subject to higher scrutiny -- that is, the Court could put its focus on what is being prohibited, rather than on who. There are some SCOTUS opinions (including those criminal cases you believe to be irrelevant) with language suggesting that should be subject to higher judicial scrutiny, so it's at least possible. Again, though, I think it unlikely. It will be interesting to see what the district court ultimately rules and on what basis, since the losing side is guaranteed to appeal.