Sunday, December 21, 2008

Prop 8's legal validity: what is it?

As we get closer to finding out whether the California Supreme Court will rule on Prop 8’s validity, I find myself asking just what issues will be argued in the appeal? And this item from the eMediaWire provides a bit of explanation that isn’t too weighed down by legalease.

What I find interesting is that in deciding the state must allow same-sex couples to marry, the California Supreme Court ruled that the state's Family Code sections, which limited marriage to between one man and one woman, violated the state’s Equal Protection Clause in its constitution. That is why the court determined that the state must allow same-sex marriages.

So along comes Prop 8, which amends the constitution with language that creates an exception to the state’s Equal Protection Clause. Curious I think. There is a legal argument that the court cannot do anything to change Prop 8 because it is a constitutional measure; all is left is what happens to those same-sex marriages that were already recognized. But is that all that is left? Does it make legal and logical sense to create a legal document, such as a constitution, that creates broad rights for all citizens, and then later amend that document to remove some classes of people from its protection? What legal theory supports that kind of argument? What precedence exists that gives weight to such a theory? Because that is what the law is built upon: precedent.

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