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Same Sex Marriage 6/17/2009 8:13:22 AM EST Challenge to Prop 8 Family Law and Mediation Practitioner, Sideman & Bancroft, L.L.P.
The constitutional questions in Strauss v. Horton, 2009 Cal. LEXIS 4626 (Cal. May 26, 2009) involve more than just the specific issue of same-sex marriage in California. Another issue is: who is the final authority on an issue of equal protection? In Strauss, the California Supreme Court upheld the right of the people to reverse the state supreme court, prospectively eliminated same-sex marriage and upheld the validity of 18,000 marriages performed prior to its enactment. In this Emerging Issues Analysis, Diana Richmond examines Strauss and discusses the opinion’s constitutional issues. She writes:
Strauss v. Horton, more commonly referred to as the Prop 8 challenge, is the third case in which the California Supreme Court has been called upon to rule on the validity of same-sex marriages. However, this case presents profoundly difficult questions of constitutional structure that go far beyond the specific issue of the validity of same-sex marriage in California. The basic conundrum is: who is the final authority on an issue of equal protection? In many instances a voter initiative may eliminate a constitutional right declared by the California Supreme Court. In this densely reasoned decision, the California Supreme Court upheld the right of the people to reverse the state's high court by a voter initiative amendment--unless the amendment so fundamentally alters the structure of California's constitution as to be a revision rather than an amendment. Because the Court found Proposition 8 to be an amendment rather than a revision, it upheld Proposition 8 and prospectively eliminated the rights of same-sex partners to marry in California. The Court also upheld the validity of the 18,000 marriages performed prior to the enactment of Proposition 8 on November 4, 2008.
In justifying its decision that the amendment has a limited effect only on the status and nomenclature of marriage (and not the substantive rights of property, parenting and the like) the majority of the Court contradicted its decision in In re Marriage Cases, [43 Cal. 4th 757 (Cal. 2008)] that upheld the right of marriage per se as constitutionally required under the privacy, due process and equal protection clauses of the California Constitution. Only Justice Moreno in his dissent stated that denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.
Subscribers can access the complete commentary on lexis.com. Additional fees may be incurred. (approx. 4 pages) Create an account or login to post comments.
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