Constitutionality of Prop. 8

[Nametag]

@Whack-a-Mole

I do not envy that judge. Regardless of which way the decision goes a helluva lot of people are going to be pissed off.

He’s a federal judge. I doubt he gives a crap about pissing people off.

Incidentally, the ruling is out: Prop.8 is, for the nonce, unconstitutional.

[Reply]

@Nametag

@Whack-a-Mole

I do not envy that judge. Regardless of which way the decision goes a helluva lot of people are going to be pissed off.

He’s a federal judge. I doubt he gives a crap about pissing people off.

Incidentally, the ruling is out: Prop.8 is, for the nonce, unconstitutional.

Yes!

Pending appeal, of course.

And then pending constitutional amendment.

It’ll never end… but it’s one victory

[ivn1188]

@Polycarp

There is, however, an in-between position not often explored: It may be against the Equal Protection Clause to bar same-sex marriages, but up to a state’s discretion to grant it legal recognition.

In other words, the default is that there is no law on the subject. A state may modify this, in its magisterial discretion, to permit SSM, but may not pro-actively enact a law or amendment forbidding SSM. It would then be up to the individual states whether to grant legal recognition to indigenous SSMs and/or other states’ SSMs that were “imported” (as New York now does).

Under this line of thought, recognition of SSM would be a legitimiate purview of individual states’ police powers, to be granted or withheld as the legislatures choose. But the converse, the active banning of SSMs, would be a violation of individual human rights under the EP clause.

Except it’s not politically realistic. If the SC upholds the decision here, it’s highly likely that they will follow Williams(I) and other cases along those lines, reading the full faith and credit clause to require states to recognize SSMs from other states. SSM non-recognition also implicates the right to travel and interstate commerce. A friendly supreme court isn’t likely to stop halfway. The other highly important argument is that the UCCJA could be thwarted if a gay couple with children split – a spouse who would be chargeable with child support could simply move to a non SSM-friendly state, which would not recognize the parent-child relationship (or the marriage itself, meaning one spouse could also avoid a divorce action). Furthermore, there is the Oklahoma adoption case – OK was forced to recognize a gay adoption.

On the other hand, a court that overturns the 9th cir. avoids the issue entirely.

I just don’t think that there is a realistic middle ground.

[Nametag]

Holy crap! I was just reading the ruling, and… page 61, Item 21c:

@The Supreme Freakin' Court of the United States

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J,
dissenting) (“If moral disapprobation of homosexual
conduct is ‘no legitimate state interest’ for purposes of
proscribing that conduct * * * what justification could
there possibly be for denying the benefits of marriage to
homosexual couples exercising ‘the liberty protected by
the Constitution’? Surely not the encouragement of
procreation, since the sterile and the elderly are
allowed to marry.”)

He quoted Scalia’s dissent in Lawrence? I can’t believe he went there!

[panache45]

@Nametag

Holy crap! I was just reading the ruling, and… page 61, Item 21c:

@The Supreme Freakin' Court of the United States

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J,
dissenting) (“If moral disapprobation of homosexual
conduct is ‘no legitimate state interest’ for purposes of
proscribing that conduct * * * what justification could
there possibly be for denying the benefits of marriage to
homosexual couples exercising ‘the liberty protected by
the Constitution’? Surely not the encouragement of
procreation, since the sterile and the elderly are
allowed to marry.”)

He quoted Scalia’s dissent in Lawrence? I can’t believe he went there!

YES! Sweet, sweet irony!