# Constitutionality of Prop. 8 **URL:** \ **Category:** Factual Questions\ **Created:** [February 2, 2010, 8:33am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357 "2010-02-02T08:33:26Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [February 2, 2010, 8:33am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/1 "2010-02-02T08:33:26Z")
The case [_Perry v. Schwarzenegger_](http://en.wikipedia.org/wiki/Perry_v._Schwarzenegger), now being heard in federal court in San Francisco, is challenging whether Proposition 8, the amendment to the California constitution that limited marriage in that state to heterosexual couples, violates the Equal Protection clause of the U.S. Constitution. Say the plaintiffs (two same-sex couples) win both at trial and on appeal to the 9th Circuit. But the U.S. Supreme Court denies judicial review (I know that’s unlikely, but just suppose). Does the 9th Circuit’s decision, that such a state constitutional amendment violates the U.S. Constitution, apply only to the states in the 9th Circuit? Or nationwide? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [February 2, 2010, 8:49am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/2 "2010-02-02T08:49:00Z")
> [@Walloon](#): > > Does the 9th Circuit’s decision, that such a state constitutional amendment violates the U.S. Constitution, apply only to the states in the 9th Circuit? Or nationwide? the former (obv. its going to depend on the breadth of the decision, but the general proposition is that circuit court precedent is only binding on the states in that circuit) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 2, 2010, 12:51pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/3 "2010-02-02T12:51:39Z")
> [@Walloon](#): > > Does the 9th Circuit’s decision, that such a state constitutional amendment violates the U.S. Constitution, apply only to the states in the 9th Circuit? Or nationwide? > [@Rumor\_Watkins](#): > > the former (obv. its going to depend on the breadth of the decision, but the general proposition is that circuit court precedent is only binding on the states in that circuit) Right. We’d have the curious position that federal law prohibited restriction of marriage to opposite-sex partners only in one section of the country. One of the more reliable methods to predict whether the Supreme Court will grant cert is to see if the question involves a direct split in circuits. In this case, it amounts to the same thing, and frankly, I have no doubts that’s where it’s going. I am utterly certain the trial court is going to find in favor of requiring SSM, and I’m 80% certain the Ninth will affirm. Interestingly, unless the composition shifts before this case reaches the Supremes, I’m about 90% sure that they will reverse. ---
**Author:** ![jonesj2205](https://avatars.discourse-cdn.com/v4/letter/j/ecc23a/32.png) [@jonesj2205](https://boards.straightdope.com/u/jonesj2205)\ **Post date:** [February 2, 2010, 1:05pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/4 "2010-02-02T13:05:09Z")
> [@Bricker](#): > > I am utterly certain the trial court is going to find in favor of requiring SSM, and I’m 80% certain the Ninth will affirm. > > Interestingly, unless the composition shifts before this case reaches the Supremes, I’m about 90% sure that they will reverse. This is a bit of a hijack, but since the original question was answered, does the almost certainty that they will be reversed play into a appelate court judge’s decision making process at all? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 2, 2010, 1:09pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/5 "2010-02-02T13:09:29Z")
> [@jonesj2205](#): > > This is a bit of a hijack, but since the original question was answered, does the almost certainty that they will be reversed play into a appelate court judge’s decision making process at all? It almost always shouldn’t. Does it? I’d say it depends on the issue, the judge in question, and the reason for the expected reversal. In this case, the Ninth Circuit have, as a group, demonstrated repeatedly that they are not overly worried about the rate at which their decisions are overturned. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [February 2, 2010, 3:15pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/6 "2010-02-02T15:15:04Z")
**Bricker** , can you explain a bit as to what the factual issues are at trial? What are the plaintiffs obliged to prove? ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 2, 2010, 4:00pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/7 "2010-02-02T16:00:15Z")
I’ve been following on the Courage Campaign Trial Tracker. As I understand it, in order to have a firm foundation to overturn on the current level of scrutiny that GLBT people are entitled to, the plaintiffs had to prove that animus against homosexuals was the only motivation for the Pro-Prop 8 campaign. In addition, the plaintiffs admitted a LOT of testimony as to the political vulnerability of GLBT people in order to try to get sexual orientation declared a suspect class and therefore subject to strict scrutiny, which would place it on a par with race and religion as regards discrimination. ETA: I am not a lawyer, law clerk, paralegal, guy who hangs out in the firm’s lobby flirting with the security guard, or even a guy who passes a law firm every day on my way to work. I’m just talking from what I’ve been reading during the trial…the Prop 8 Trial Tracker had some good analysis interspersed with their liveblogging of the trial. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [February 2, 2010, 10:03pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/8 "2010-02-02T22:03:32Z")
> [@Bricker](#): > > Interestingly, unless the composition shifts before this case reaches the Supremes, I’m about 90% sure that they will reverse. I reckon four to reverse (Alito, Scalia, Thomas, Roberts), with Kennedy being the swing vote. He wrote the Court’s opinion in the controversial 1996 case _Romer v. Evans_, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. ---
**Author:** ![Napier](https://avatars.discourse-cdn.com/v4/letter/n/ce73a5/32.png) [@Napier](https://boards.straightdope.com/u/Napier)\ **Post date:** [February 3, 2010, 12:11am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/9 "2010-02-03T00:11:58Z")
I heard analysis months ago on an NPR discussion, that said the court would logically have to find the law is constitutional, but prevents the state from performing heterosexual marriage. That is, the law changes the definition of marriage, and there is no constitutional reason marriage can’t be redefined, only a constitutional reason the state can’t provide it as a legal status any more because of its new demographic restriction. Any basis in fact for this? Note, the discussion I heard did not conclude that they were confident the end result would be the dissolution of the legal institution of marriage there. Though it would be funny if this action turned out to harm the institution of marriage itself, an ironic twist I don’t think many of us saw coming. ---
**Author:** ![Tamerlane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tamerlane/32/7602_2.png) [@Tamerlane](https://boards.straightdope.com/u/Tamerlane)\ **Post date:** [February 3, 2010, 12:17am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/10 "2010-02-03T00:17:18Z")
> [@Bricker](#): > > I am utterly certain the trial court is going to find in favor of requiring SSM, Utterly certain is pretty strong. Why, if you don’t mind me asking? Strength of the case being presented? Knowledge of this particular judge’s tendencies? ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 3, 2010, 12:41am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/11 "2010-02-03T00:41:30Z")
> [@Tamerlane](#): > > Utterly certain is pretty strong. Why, if you don’t mind me asking? Strength of the case being presented? Knowledge of this particular judge’s tendencies? As I posted before, I’m not a lawyer, but reading the transcripts of the trial, the case of the defendant-intervenors was pitiful. Boies took their two “expert” witnesses apart. ---
**Author:** ![Tamerlane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tamerlane/32/7602_2.png) [@Tamerlane](https://boards.straightdope.com/u/Tamerlane)\ **Post date:** [February 3, 2010, 12:56am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/12 "2010-02-03T00:56:28Z")
> [@jayjay](#): > > As I posted before, I’m not a lawyer, but reading the transcripts of the trial, the case of the defendant-intervenors was pitiful. Boies took their two “expert” witnesses apart. I agree, generally - but [see here](http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/29/MNO21BP3AO.DTL). Makes it sound like a little less than a slam dunk. I’m just curious where **Bricker** ’s surety was coming from.\* - By the way **Bricker** , no problem if you were just being a bit hyperbolic, I was just curious if you had some insider info/slant :). ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [February 3, 2010, 2:02am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/13 "2010-02-03T02:02:00Z")
> [@jayjay](#): > > I’ve been following on the Courage Campaign Trial Tracker. As I understand it, in order to have a firm foundation to overturn on the current level of scrutiny that GLBT people are entitled to, the plaintiffs had to prove that animus against homosexuals was the only motivation for the Pro-Prop 8 campaign. > > In addition, the plaintiffs admitted a LOT of testimony as to the political vulnerability of GLBT people in order to try to get sexual orientation declared a suspect class and therefore subject to strict scrutiny, which would place it on a par with race and religion as regards discrimination. Basically, as I understand everything, homosexuals are not considered a suspect class in the federal courts (they are in California, and some other states, which was what led to the legalization of SSM there). Therefore, any law that discriminates against them only has to be shown to have a rational basis in advancing a legitimate state interest. The plaintiffs are trying to show that the only basis for Prop 8 was anti-gay animus, which is not considered a rational basis. They also seem to be arguing that homosexuals are a suspect class (certainly they have introduced testimony along the lines of the requirements for this consideration, I don’t know if their briefs make this argument explicitly). This would make it much harder to defend discriminating against homosexuals. So, I’d say it’s a two-pronged attack. For those who want to see the trial, the closest you’re going to get is the [reenactments here](http://marriagetrial.com/), which also has the full trial transcripts linked (several pdfs, with over 2500 pages total). They’ve just started getting them posted, though, so only Episode 1 is currently available. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [February 3, 2010, 7:59am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/14 "2010-02-03T07:59:54Z")
I’m confused, why would the Federal Supreme Court rule in on this? I thought the particular issue at hand was about the California State Constitution, not the Federal Constitution? ---
**Author:** ![Cyberhwk](https://avatars.discourse-cdn.com/v4/letter/c/7993a0/32.png) [@Cyberhwk](https://boards.straightdope.com/u/Cyberhwk)\ **Post date:** [February 3, 2010, 8:07am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/15 "2010-02-03T08:07:56Z")
> [@jackdavinci](#): > > I’m confused, why would the Federal Supreme Court rule in on this? I thought the particular issue at hand was about the California State Constitution, not the Federal Constitution? Someone can correct me if I’m wrong, but I believe that was the first case that was already decided last year. This is a different one challenging Prop 8 under Equal Protection. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [February 3, 2010, 8:30am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/16 "2010-02-03T08:30:56Z")
The question in _Perry v. Schwarzenegger_ is whether a portion of the California State Constitution violates the [Equal Protection clause](http://en.wikipedia.org/wiki/Equal_Protection) of the U.S. Constitution. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [February 3, 2010, 8:48am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/17 "2010-02-03T08:48:34Z")
From the plaintiffs’ original complaint in _Perry v. Schwarzenegger_, filed in the United States District Court, Northern District of California, in May 2009: > [@](#): > > JURISDICTION AND VENUE > > 1. This case raises questions under the Constitution of the United States and 42 U.S.C. § 1983, and thus this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331. > > 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Defendant O’Connell resides in this district and all Defendants reside in the State of California. Venue is also proper in this Court because a substantial part of the events giving rise to the claim occurred in this district. 42 U.S.C. § 1983: > [@](#): > > Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress… 28 U.S.C. § 1331: > [@](#): > > The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2010, 3:08pm UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/18 "2010-02-03T15:08:01Z")
> [@Tamerlane](#): > > Utterly certain is pretty strong. Why, if you don’t mind me asking? Strength of the case being presented? Knowledge of this particular judge’s tendencies? > [@jayjay](#): > > As I posted before, I’m not a lawyer, but reading the transcripts of the trial, the case of the defendant-intervenors was pitiful. Boies took their two “expert” witnesses apart. > [@Tamerlane](#): > > I agree, generally - but [see here](http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/29/MNO21BP3AO.DTL). Makes it sound like a little less than a slam dunk. I’m just curious where **Bricker** ’s surety was coming from.\* > > - By the way **Bricker** , no problem if you were just being a bit hyperbolic, I was just curious if you had some insider info/slant :). No inside info, just a realization that the primary issues are legal, not factual, and that this particular judge is ready to see the law change and the factual record before him does not hurt that leaning in the least. ---
**Author:** ![I\_Love\_Me\_Vol.I](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/i_love_me_vol.i/32/521_2.png) [@I\_Love\_Me\_Vol.I](https://boards.straightdope.com/u/I_Love_Me_Vol.I)\ **Post date:** [February 4, 2010, 1:44am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/19 "2010-02-04T01:44:54Z")
> [@Bricker](#): > > Interestingly, unless the composition shifts before this case reaches the Supremes, I’m about 90% sure that they will reverse. I ask the following question with no ulterior motive or any other sort of baggage attached: Are you 90% certain of a potential reversal based strictly on the legal merits of the case? Or are you 90% certain SCOTUS would reverse the judgment based strictly on (your impression of) the political agendas of the current Justices?\* If the latter, would you consider such a reversal to be activist judging? \*Or perhaps some combination of the two things; if so, what do you see as the mix of the combination? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [February 4, 2010, 1:57am UTC](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357/20 "2010-02-04T01:57:07Z")
> [@Bricker](#): > > No inside info, just a realization that the primary issues are legal, not factual, and that this particular judge is ready to see the law change and the factual record before him does not hurt that leaning in the least. how do you figure a strident law-and-econ judge for someone who “is ready to see the law change?” (in this case) no, i’m not being snarky to the point of pigeonholing his particular brand of legal analysis into one political philosophy, but to me a law and econ approach would basically conclude that since they are afforded marriage-like options in california, and really the only benefits they lose out on at the federal level is preferential tax treatment (which can be law-and-econed away into a subsidy to procreate, if you want), there’s no reason that they ought to have suspect classification and thus the promotion of procreation is a sufficient rational basis. just curious how you see a big law’n’econ dude’s analysis of this (i never took law’n’econ in school, so i’m not that familiar with all the analyses, but it seems to me my analysis above is in line with the school of thought) [Next page](https://boards.straightdope.com/t/constitutionality-of-prop-8/527357.md?page=2)