The passage of Proposition 8 added a new Section 7.5 to the California State Constitution, making only marriage between one man and one woman recognized or valid in California.
Obviously if passed in the proper manner, without defect or flaw, it’s now a part of the State Constitution, and as such completely constitutional within California state law. A duly enacted constitutional amendment cannot be unconstitutional.
There have been some noises about how it didn’t meet some requirement for enacting amendments by initiative – if so, we’ll no doubt hear more about that. That’s not what this thread is about.
My question is if there are any reasonable grounds to find it in violation of the U.S. Constitution. (I want it to be only a secondary issue how the current crop of justices might react to it, but rather focus on the constitutional law aspect.)
Here’s my thinking:
Pro:
–States have always had the power to regulate marriage. Restricting marriage to opposite sex couples has historically been a part of such regulation.
–This amendment appears to be a properly passed amendment, reflecting the will of a majority (bare, but still a majority) of voters.
–Federal DOMA appears to put this sort of thing off limits.
–The sole Federal case addressing gay marriage declined to hear it as “not constituting a federal question.”
Con:
–Loving v Virginia established marriage as a “fundamental right.”
–Same-sex couples in California were undeniably married under existing law prior to the enactment of Proposition 8.
–Romer v Evans ruled that laws whose chief purpose and effect was purely to deprive gay people of rights, or access to rights, did not meet even the ordinary/minimum scrutiny test.
–Any person or persons married in California to someone of the same sex is being deprived of a fundamental right by Section 7.5 – their marriage, and rights accruing under it, are being voided.
I suspect it might be a tough sell. However, I see some validity to such a claim – at least enough to compel SCOTUS to review it.
What say you?