Also in two cases involving inmates getting married:
ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)
and
TURNER v. SAFLEY, 482 U.S. 78 (1987)
both of which cite and echo that “the right to marriage is of fundamental importance”.
You are going to have to wait a while for Loving and its progeny to be applied in this situation. That case, along with Zablocki, came at the height of the Court’s progressive phase. The Court has long since retreated from that type of rights expansion, and, instead, as shown today in the decision released overturning Michigan v. Jackson, is interested still in retrenching. The chance of expansion of Loving’s concept to anti-homosexual marriage laws is nil.
Loving itself is full of obiter dictum. The Supreme Court did not need to address marriage as a fundamental right, given that the Equal Protection clause was held to invalidate the anti-interracial marriages in question. So the concept advanced in Loving that marriage is a “fundamental right” which requires strict scrutiny when burdened by a statute is on shaky ground to begin with. Add to that the fact that the Court’s makeup has changed substantially since Loving, Zablocki, et al. were decided and you can understand why the same-gender marriage advocates are hesitant to take this to federal court right now.
Not saying those cases shouldn’t be precedent, mind you.
So why’d you choose to return? To gloat? How mature. :rolleyes:
But wouldn’t the precedent only be that the US Constitution doesn’t guarantee the right to gay marriage? Would that effect anything apart from morale? Any states legalizing gay marriage could do so and grant rights not afforded in the constitution. It would be legal to prohibit it, but then they’d be in the same place they were had nobody challenged it anyway?
The problem is that that decision then becomes precedent, and that’s much harder to overturn later than it is to get the Court to simply say the Constitution protects the right of same-gender couples to marry as an issue of first impression.
Based on the link supplied by Hirundo82, it appears the federal courts will be considering the issue now. Bricker, the other shoe has fallen, now the question is, what happens when it hits the floor?
Well, who who they’ll draw at the trial level. I think the chances are pretty good that the Ninth Circuit might find at least a heightened scrutiny requirement for the EP claim. But I think the SC will grant cert, and I think they’ll kill it.
Now, if the court changes between now and then, who knows…
So, Bricker, what do you think the SCotUS would do to differentiate Loving and Zablocki?
Forgot to answer this. I didn’t ask, Bricker asked and so I gave my answer. I think Bricker was asking about good public policy but you would have to check with him.
The Court didn’t need to create that “good system”, it should have decided that we need to use the system already in place - major changes to the constitution need to go through a 2/3 majority approval in the legislature.
Anyway, this is just the first stage in the battle - the LA Times reports that people are gearing up for a ballot proposition to overturn Prop. 8, I hope as soon as 2010. Democracy at work! Let the will of the people be heard! 
Looking at the demographics of the public opinion polls, at some point the majority that voted Yes on Prop. 8 will be aged out of the voting pool.
Except that, as younger people age, they eventually migrate to Orange County and develop Republicanosis. 
C’mon. This wasn’t a major change to the Constitution. It was a single sentence, and it affected one part of a single governmental function. To decide that this was a major change would effectively have been saying that no change is an amendment - they ALL are revisions. (Perhaps California might benefit from such a change, admittedly). But the mere fact that it’s a good idea doesn’t make it the province of the court to impose.
It wasn’t the number of sentences that made it a major change. It was the fact that it was removing a fundamental right from a group of people that made it a major change. How about this sentence:
“Marriage must be between a man and a woman of the same race.” Would that be a major change?
How about this sentence:
“Marriage must be between a Christian man and Christian woman.” Would that be a major change?
ETA: By major change, I mean a change that should be defined as a “revision” instead of an “amendment” under California law, and should go through the process necessary in California to approve a revision of the constitution.
Yes, but despite this hardening of the arteries you predict, enough will have been raised in an environment where it’s (gasp) OK to be gay that we will have enough to carry a majority.
Um, no offense, but lots of Californians grew up where it was ok to be “gay.” California has had a very tolerant view of homosexuality for a long time. And despite this fact, large numbers of Californians who grew up in that environment manage at some point to become converts of the “teh gay is evil!” camp.
Maybe it’s in the water… :eek:
The issue of what is or is not a “revision” has had lots of case law generated on it. This is hardly a case of the first impression. The California Supreme Court had little room in which to work, unless you are proposing that it ignore established precedent and create a new approach that for all you know, might well be used in another two years to sink a perfectly “good” (from your viewpoint) amendment.
It is possible that the fact California can do what it did by initiative is a bad thing. That is not in and of itself reason to overturn almost 100 years of precedent on the issue of how initiatives and the constitution interact.
Having lived in this state for the past 20 years, I can tell you that from my point of view I have seen a marked difference in how gays are treated in popular culture and in general society. A simple web search finds many sites asserting the same. Here’s an example:
Pew Research Center for the People & the Press - Trends in Attitudes Toward Religion and Social Issues: 1987-2007
“The survey also finds steady – if slow – declining support for traditional or conservative social values, in such areas as homosexuality and the role of women in society.” (They do mention later on that gay marriage support is lagging behind.)
This pdf seems to back up DSYoungEsq:
I am not Bricker, but I have a theory. If the issue was whether the fundamental Due Process rights were impaired - they would say the same thing as the CA Sup Ct, which is that the underlying substantive rights are protected by state law (which provides civil union with equivalent rights of marriage), and the only thing Prop 8 takes away is the word “marriage.”
However (here’s where it gets nutty, I’m just warning you.) Since reading the opinion I feel that the CA Sup Ct was “crazy like a fox.” The thing they did, and I believe intended to do, was create two class of people similarly situated who are treated differently without rational basis.
Not gay couples and hetero couples.
Gay “married” couples and gay “civil unioned” couples.
This could open the door to a Federal Equal protection approach which would not in any way require that homosexuals be treated as a protected class (something the Sup Ct definitely is not planning to do right now), nor would it say anything as to whether a different state would be obligated to allow gay marriage. This approach gives the Supreme Court what it truly wants - a narrow holding. I have my extreme doubts as to whether this approach will be sucessful, or is even a good idea longterm, but I am watching with interest.
Well, as I said in a previous post, I read through the court’s opinion and I wasn’t impressed with many of the examples they cited to support their position. What examples do you have?
In any case the Supreme Court decided otherwise, and seems to think it’s OK to have a simple majority of the electorate remove a fundamental right in the constitution from a certain group of people, because removing a fundamental right is not something the legislature needs to concern itself about. I realize I’m not going to change the opinion of the Supreme Court. I’ll just start busily working on my ballot initiatives to deny state voting rights to Californians born in Mexico and forbid the building of new mosques.
In the meantime, let’s get to work on Proposition XXYY in 2010 to overturn Prop. 8!
How about “The franchise shall be restricted to men only.”? That’s also a single sentence, and it affects one part of a single governmental function. And yet it’s plainly a major change, and completely unconstitutional to boot.