[Not Afraid]

This was written by an attorney on another board I post on. She was responding to the suggestion that this will go to the supreme court. I thought it was an excellent dissemination of the challenges we face in the future.

I wouldn't hold my breath. It took the strength and unity of the Thurgood Marshall Supreme Court era to strike down "separate but equal." We have never, and may never again, have that type of idelogical makeup in the Supreme Court.

In order for the Supreme Court to strike down the California Constitutional amendment, the Court would have to hold that, as a matter of federal law, under the U.S. Constitution, gays have equal rights, including the right to marry and adopt children. You are simply not going to get that type of ruling before the current Supreme Court justices.

If a lawsuit were brought today trying to challenge Prop 8 before the U.S. Supreme Court, I'd bet your chances are better than even that these 9 justices would uphold Proposition 8 under a 5-4 or 6-3 split decision.

Even with the Obama win and even if 2 Supreme Court justices retire and he gets to appoint 2 liberal justices, that really only gets us back to the current balance because the 2 justices most likely to retire are our most liberal justices. So you get back only to the balance we have today.

Now, there will be lawsuits, but I don't know how successful they will be. One could argue that you can't amend the Constitution to take away a fundamental right. However, there is nothing in the Constitution guaranteeing the right of gays to marry. So the California Supreme Court would be forced to weigh an implied right under the equal protection language against an express Constitutional provision banning gay marriage. That's a reach even for a highly liberal CA Supreme Court.

One could argue that Proposition 8 was really a Constitutional revision and not an amendment. Under the CA Constitution, you can amend the Constitution through a voter initiative passed by a simple majority, like we did with Proposition 8. However, in order to revise the Constitution, you need a 2/3 vote of the legislature during a constitutional convention. I believe a lawsuit on this issue was filed well before yesterday's election. That's also a tough one because there is very little guidance in the CA Constitution or in case law as to what constitutes an amendment versus a revision.

I wonder if the California people understand what they just did last night.

On the upside, however, I believe that the 19,000 or so same-sex marriages that took place between May and yesterday are valid and will continue to be recognized as legal, valid, and enforceable in California. You cannot apply Prop 8 retroactively, as that would be an ex post facto application of law and violative of Article 1, section 10 of the U.S. Constitution.