A Prop 8 challenge for swankers

[Chernabog]

One would hope that an amendment which takes away a Constitutionally-granted fundamental right of a minority (which normally must be looked at per the In Re Marriage cases under the strict scrutiny standard) would constitute a "revision".

Again... I need to review the case law and see what sorts of examples are out there, because I don't usually delve into that area.

[Morrigoon]

Originally Posted by Chernabog

One would hope that an amendment which takes away a Constitutionally-granted fundamental right of a minority (which normally must be looked at per the In Re Marriage cases under the strict scrutiny standard) would constitute a "revision".

Again... I need to review the case law and see what sorts of examples are out there, because I don't usually delve into that area.

There is case law to support that marriage is a fundamental right protected under "life, liberty and pursuit of happiness". I don't remember the case name but it had to do with prisoners.

There is case law to support that protections afforded to racial, religious, and gender minorities is to also be applied to sexual orientation. Again, I no longer have a record of the case name. Although this I'm sure you can find easily.

Then of course there's Loving vs. Virginia, which nullified anti-miscegenation laws (eg: legalized interracial marriage)

And Brown vs. Board of Education, which we all know establishes that separate is not equal.

Dang, I used 5 cases in the paper I wrote, can't remember what the 5th case was for, probably a weaker supporting argument. Of all the things I wish I hadn't thrown out from college, its the physical copy of this paper I miss the most (since the digital was lost in a hard drive crash)

[Chernabog]

Originally Posted by Morrigoon

There is case law to support that marriage is a fundamental right protected under "life, liberty and pursuit of happiness". I don't remember the case name but it had to do with prisoners.

There is case law to support that protections afforded to racial, religious, and gender minorities is to also be applied to sexual orientation. Again, I no longer have a record of the case name. Although this I'm sure you can find easily.

Then of course there's Loving vs. Virginia, which nullified anti-miscegenation laws (eg: legalized interracial marriage)

And Brown vs. Board of Education, which we all know establishes that separate is not equal.

Dang, I used 5 cases in the paper I wrote, can't remember what the 5th case was for, probably a weaker supporting argument. Of all the things I wish I hadn't thrown out from college, its the physical copy of this paper I miss the most (since the digital was lost in a hard drive crash)

However, you are talking about federal cases there (which in certain instances DO control if there's a conflict between state and federal, which is too complicated to go into here). This is a state law matter for right now (though it will ultimately be a federal matter -- and once Scalia and Thomas are dead or retire, the US Supremes will hopefully fall on the correct side of fundamental human rights).

In the In Re Marriage cases, the California Supreme Court recognized that:

Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 [219 Cal. Rptr. 387, 707 P.2d 760] (Valerie N.) [“The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests. [Citations.] … These rights are aspects of the right of privacy which … is express in section 1 of articleI of the California Constitution which includes among the inalienable rights [*810] possessed by all persons in this state, that of ‘privacy.’ ”]; Williams v. Garcetti (1993) 5 Cal.4th 561, 577 [20 Cal. Rptr. 2d 341, 853 P.2d 507]

In re Marriage Cases, 43 Cal. 4th 757, 809-810 (Cal. 2008)

The big deal of those cases is not that the right to marry is fundamental, but that sexual orientation was made a "suspect class" like race:

The issue is one of first impression in California,however, and for the reasons discussed below we conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution's equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

In re Marriage Cases, 43 Cal. 4th 757, 841 (Cal. 2008) Of course, this statement does say "statutes" and the "amendment/revision" is technically not a "statute" but it might be treated the same (I'm not sure on that).



Of course, this part is nice too:

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

It is incongruous to say that marriage is a basic human fundamental right guaranteed by the California Constitution.... but only for some people (which is the point of the In Re Marriage cases to begin with). Let's just try our best to make sure it does not pass, and not have to worry about this stuff.