So what now?
Three lawsuits have already been filed with the California State Supreme Court to block it from being implemented. They claim that Prop H8 actually made a far-reaching amendment to the state constitution that requires approval by 2/3 of the state legislature, which was not done, and therefore is invalid.
While that may be true, here’s better courses to take.
First, the state course.
The wording of Prop 8, which only defines marriage in California as being valid between a man and a woman, has many state constitutional problems. First, it invalidates all same-gender marriages made between June 17th and November 5th, which by definition is an ex post facto law, which violates Article 1 Section 9 of the state constitution:
“A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.”
An ex post facto law is one that has retroactive force. Prop 8 attempts to undo what was legally done. The Attorney General is trying to avoid this by saying that the state will honor those marriages, some 16,000 in all, but he can’t dodge the plain wording. Second, the ruling by the state Supreme Court is not in any sense overturned by Prop 8. The ruling was that Prop 22 was unconstitutional because it denied equal protection under the laws as specified in Article 1 Section 7-a:
“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;”
Well, guess what, Prop 8 still does exactly that! It does NOTHING to overturn the state Supreme Court ruling. All it really does is create a constitutional conflict. The current equal protection clause says that same-gender couples can marry. Prop 8, which would become Article 1 Section 7.5 if enacted, would contradict that, but IT DOES NOT say that it is an exception to Section 7!:
“Only marriage between a man and a woman is valid or recognized in California.”
And that exception is REQUIRED by Article I1 Section 26:
“The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”
Because no exception was made in Prop 8, section 26 is applied, meaning that Section 7-a remains fully intact, and the ruling by the state Supreme Court along those lines also stands. To resolve the conflict, Prop 8 must go.
So, in this case, opponents of Prop 8 have two strong arguments at the state level to toss Prop 8.
Second, the federal course.
In Colorado in 1992 voters enacted a state constitutional known as Amendment 2. It was an amendment to the state Constitution to prohibit all governments in Colorado from enacting laws or rules that would prohibit discrimination based on sexual orientation. The case found its way to the United States Supreme Court, which ruled, in Romer v. Evans, that the Fourteenth Amendment’s Equal Protection Clause prohibited such an amendment, and that homosexuals were considered a suspect class for discrimination, and more specifically that class-based legislation aimed at homosexuals was unconstitutional. That suspect classification was used as a foundation for the landmark Lawrence v. Texas ruling in 2003. Also, since the Fourteenth Amendment incorporates the Bill of Rights against the states, Romer applies to Prop 8 and is therefore unconstitutional. Also applicable is the landmark Loving v. Virginia, where the rejection of Virginia’s claim of equal denial of rights for both whites and blacks to marry each other is analogous to what the California Supreme Court ruled here. Even Planned Parenthood v. Casey addressed the issue:
“It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood,”
To say that marriage is not included in those most basic decisions about family would be ludicrous on its face.
And Lawrence itself gives the statements that make it a landmark and directly applies here, in its holdings:
“Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.”
Marriage is definitely such private conduct, and denial of the right to wed is definitely government intervention.
If the lawsuits go the federal route, this is the way to argue it.
Third, the state amendment route.
If the bigots can do it, so can we.