The Prop 8 legal challenge

[furrbear]

SF City Attorney Dennis Herrera has filed suit (PDF) to halt the enactment of Proposition 8 eliminating the right of same-sex couples to marry. Santa Clara county and the City of Los Angeles have joined the suit. Atty. Paul Hogarth at BeyondChron reviews the plaintiff's brief:

Prop 8 was not your typical "amendment" that merely tinkers with the California Constitution. It was a drastic revision that deprives a "suspect class" (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a "suspect class." If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of "change."

It's too early to lay odds on the likelihood of success, but my initial read into this challenge is surprisingly optimistic. The legal foundation of the challenge is much stronger than I originally guessed. If you don't read the PDF of the filing, at least do yourself the favor of reading Hogarth's excellent analysis.

Comments

[mister-don.livejournal.com]

I shall be watching this closely

[jkusters]

I dunno, this still reads like a longshot to me. Other times when this strategy has been successfully used, it has been in the context of a substantial amount of text in the Constitution being changed. There have been many times when this strategy has failed due to the change being only one or two sentences, even though the change was conceptually large.

I'd be thrilled if the courts chose to entertain this argument. But I'm not optimistic.

[blt4success66.livejournal.com]

I don't know if you read Leonard Pitts or not (www.miamiherald.com) but he made some interesting comments regarding blacks and the prop 8 vote. My blog has the full commentary.

HUGS!

[fogbear.livejournal.com]

I'm fairly confident that the California Supreme Court will invalidate Proposition 8, especially given the May 15 decision. That won't be the end of the matter, to be sure, but our opponents will have to get such an amendment through the legislature which has passed marriage equality bills more than once over the past several years.

[osodecanela.livejournal.com]

Jason, I'm with you in this. Having read their opinion in May, I will be surprised if they don't void Prop 8. How long it will take them to do it is however, another matter. It took 4 years from San Francisco's "winter of love", till they issued their ruling last May.

[osodecanela.livejournal.com]

John, thanks for posting this. It's a great read!

Are there Anti-prop 8 demonstrations down your way this Saturday?

[fogbear.livejournal.com]

Actually, I don't think it will take them long to at least issue a stay before hearing arguments. Again. Certainly not four years (which including working its way through Superior and Appeals courts)

[osodecanela.livejournal.com]

From your mouth to the Divine's ears!

I know too many people who're kicking themselves for not getting married while they had the chance.

By the way, I hope this isn't a bad omen. I was really saddened yesterday to see that the bakery that did our wedding cake (and ours was the first same-gender wedding they did) has gone out of business.

[furrbear.livejournal.com]

Actually, it would appear that they are seeking leave to take the matter back to the Supreme Court, the court of original jurisdiction.

After reading the filing, I must say that it is one of the best initial filings I've ever read. It's even understandable to a laymen. Print a copy of the PDF (39 pages) and read it over.

[furrbear.livejournal.com]

Weaver, after reading the filing, I must say that it is one of the best initial filings I've ever read. It's even understandable to a laymen. Print a copy of the PDF (39 pages) and read it over.