I know a whole boatload of money was thrown behind the gears of the initiative process to produce the result we all have read about in the newspapers. But, I want to be the first, before some Judge officially proclaims it, to tell you that Prop 8 is unconstitutional. Dead in the water; pulled up lame at the starting gate; kaput.
You cannot disenfranchise a segment of the population who are guaranteed constitutional rights by the state and federal constitutions by amending the state constitution to say so. California tried that with Prop 14 in 1964, which purported to amend the California state constitution to overrule the 1963 Rumford Fair Housing Act, to allow sellers of real estate to sell or not sell to anybody they chose, i.e., to make housing segregation legal by personal choice of the seller. The U.S. Supreme Court held Prop 14 unconstitutional three years later in the case of Reitman v Mulkey, as a violation of the Fourteenth Amendment to the U.S. Constitution.
I predict, and you heard it here first, that the same California Supreme Court that held that denial of the right to marry to same-sex couples is a violation of the Equal Protection constitutional right will hold that Prop 8, by attempting to amend the state constitution to behead this burgeoning social upheaval, is unconstitutional.
I have toiled in the vineyards of the state and federal court system as a civil litigator for 31 years now. It has been my privilege to see in my career a fair share of constitutional law debated and being made over these volatile, three-plus decades. The purpose of writing this is to neither advocate same-sex nor to submit a thesis on the intricacies of interpreting constitutions written, respectively, back during the Gold Rush era (California’s) or before Washington was elected the President (U.S.) in a world without electricity or any other modern conveniences, through the mists of history, back in the 18th century. But, I believe I have this right.
The basis of the Supreme Court’s decision was that the Equal Protection Clause means that same-sex couples should have the same legal rights and incidents of marriage that opposite sex couples enjoy and, if our legal system won’t give them these, then same-sex couples have been deprived of critical and fundamental constitutional rights. A proposition which passed California’s initiative process by a majority vote, and not a huge one at that, simply cannot, by amending the state constitution, as a matter of constitutional law, remove a fundamental constitutional right, guaranteed by the very same constitution. Nice try, but no cigar.
I know that there is intense opposition to same-sex marriage in some religious groups and my purpose here is in no way to call into question anybody’s religious beliefs or religions in making my prediction. This is a matter of the separation of church and state and religions remain and will always be free to teach and proscribe rules for their adherents regardless of what man-made constitutions say or don’t say.
There it is. Watch for this playing in a courtroom nearby very soon. You heard it here first. I am donning my flak jacket now. . .