About Prop 8....

[UtahDan]

Originally Posted by TripletDaddy

Thanks UD. I believe you are correct.

rational basis sounds correct.

I need to bust out my Con Law notes.

See above, I just did exactly that. :-)

[creekster]

Originally Posted by UtahDan

Sort of. What he is saying is that if you put something on the ballot in California to amend the constitution (which it is very easy to do there) then it becomes the constitution of that state. Once it is part of the constitution, all a judge can do is interpret it. Never strike it down, at least on the state leve. Recall that the Ca SC found that there was a right to gay marriage under its state constitution, not the federal constitution. One of the things to keep in mind is that a state constitution can give its citizens more rights than the federal constitution, but never fewer. The federal constitution is the floor, which is why all the states whose highest cousrt ahve found the right does exist there have found that it does under the constitution of that state. So change the constitution in a way that is only subject to one interpretation and you fix the issue.

The further issue is whether under the federal constitution you have created a "classification" that runs a foul of the fourteenth amendment (equal protection clause) which has several layers for deciding whether a classification is permissible depending on what it is. The SCOTUS has never found that sexual orientation is a "suspect class" (that is, in laymans terms, you have to have a really good reason for making that classification) like race or religion or even a quasi-suspect class like gender. For any of those a state must show a really, really good reason for having a law that treats people differently based on one of those.

Everything else, all other classifications, just meet a rational basis test. That is, if there is any rational reason at all the law treats people differently then the law is okay. So far, sexual orientation is in this latter class. So any articulable reason for a law (or a state constitution) that treats them differently will suffice.

The SCOTUS, however, could decide to expand its definition of "suspect class" to include sexual orientation and no doubt it is going to get asked to do exactly that at some point. Hope that is helpful.

Thanks for the complete answer, mine was too terse. Here is my question though: Does this impicate sexual orientation? IOW, isn't the argument that everyone can get married but marriage is defined as man + woman. If you choose same gender you can have a union, but not a marriage. So why does sexual orientation, even if given some level of heightened scrutiny, matter?

I will admit that I am not really up to date on the legal issues here, just asking a quesiton.

[TripletDaddy]

UD, I was under the impression that sexual orientation is quasi-suspect, hence laws that prohibit discrimination based on sexual orientation.

Is this off base?

[UtahDan]

Originally Posted by creekster

Thanks for the complete answer, mine was too terse. Here is my question though: Does this impicate sexual orientation? IOW, isn't the argument that everyone can get married but marriage is defined as man + woman. If you choose same gender you can have a union, but not a marriage. So why does sexual orientation, even if given some level of heightened scrutiny, matter?

I will admit that I am not really up to date on the legal issues here, just asking a quesiton.

I think it has to implicate it. Substitute a class we know is protected. Could have a law or a constitution that said that only whites can get married and all other races could have something identical but called a union? It is clear there is a classification at work here, the only real question is whether a court at some point will decide that sexual orientation has enough in common with gender or race or national original that the higher test will apply to it, that is, that the government must have a compelling interest or important interest to make the classification. If that ever happens the game is over, IMO. There is no reason it can't as this is as close as you get to a normative question for a judge to decide.

[UtahDan]

Originally Posted by TripletDaddy

UD, I was under the impression that sexual orientation is quasi-suspect, hence laws that prohibit discrimination based on sexual orientation.

Is this off base?

It has been a while since I was in law school so you could be right. But the laws are just laws. They are giving more rights not taking them away. You would need to be talking about a law that did discriminate and was struck for that reason. If that has happened in the context of the federal constitution it is news to me. I may have to check now, I am getting curious.

[YOhio]

O'Connor's concurrence in Lawrence v. Texas stated that sexual orientation would be held to rational scrutiny in the context of marriage. Scalia's dissent argued that gender restrictions would ultimately fail even under the rational basis test due to the majority holding.

Whether or not P8 fails, the SCOTUS will have to address this matter at some point and it will likely hinge on whether the Full Faith and Credit Clause protects SSM. The 1996 DOMA explicitly states that it doesn't so that will be the main challenge point.

[UtahDan]

Okay its coming back. Romer v. Evans, 517 U.S. 620 (1996) applied a rational basis test and found there was none for a CO constitutional amendment that repealed state and local laws forbidding discrimination on the basis of sexual orientation. That still seems to be the seminal case from my quick search.

[UtahDan]

Originally Posted by YOhio

O'Connor's concurrence in Lawrence v. Texas stated that sexual orientation would be held to rational scrutiny in the context of marriage. Scalia's dissent argued that gender restrictions would ultimately fail even under the rational basis test due to the majority holding.

Whether or not P8 fails, the SCOTUS will have to address this matter at some point and it will likely hinge on whether the Full Faith and Credit Clause protects SSM. The 1996 DOMA explicitly states that it doesn't so that will be the main challenge point.

Okay theres the answer then. We don't really know what SCOTUS would do. :-)

[creekster]

Originally Posted by YOhio

O'Connor's concurrence in Lawrence v. Texas stated that sexual orientation would be held to rational scrutiny in the context of marriage. Scalia's dissent argued that gender restrictions would ultimately fail even under the rational basis test due to the majority holding.

Whether or not P8 fails, the SCOTUS will have to address this matter at some point and it will likely hinge on whether the Full Faith and Credit Clause protects SSM. The 1996 DOMA explicitly states that it doesn't so that will be the main challenge point.

Ah yes, that's right. Thanks for reminding us.

[SoCalCoug]

Originally Posted by UtahDan

Okay theres the answer then. We don't really know what SCOTUS would do. :-)

Actually, it likely comes down to what Justice Kennedy would do.