Prop. 8 analysis: Does Prop. 8 violate equal-protections clause?

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage. Barry P. McDonald, a professor at the Pepperdine School of Law, said a Colorado case is key. Here's an analysis he provided to The Times:

Both Judges Reinhardt and Hawkins are focusing on the question of whether Prop. 8 is constitutional under the Supreme Court's prior decision in Romer vs. Evans.

In Romer, the U.S. Supreme Court said that a Colorado initiative which stripped gay persons of special protections under municipal anti-discrimination laws related to employment, etc., violated the federal equal protection clause. Thus, the judges are asking, isn't this case the same because the California Supreme Court decided that there was a right of same-sex marriage that Prop. 8 took away?

One view is that this case is the same, and that the people of California acted with "animus" (as the Supreme Court said of the Colorado voters in Romer) and intended to harm gay people by enacting Prop. 8 because of their moral disapproval of same-sex relationships. Another view is that this case is different because the people of California have already given same-sex couples all rights and obligations of marriage except the formal name, and thus evidence no dislike of same-sex couples or desire to harm them, but simply wish to proceed cautiously or experimentally before fully changing the traditional institution of marriage.

Which view will prevail will likely be influenced by the ideological proclivities of a particular judge, and at least at this stage of appeals it seems from the questioning that there are at least two of the three judges who adopt the former view.

 

FULL COVERAGE:

Is gay-marriage ban a violation of the right to marry or a denial of equal protection for gays?

Lawyer argues that marriage exists in society's interest so that men and women can procreate

Must appellate court accept findings of fact by judge who overturned Prop. 8?

Photo credit: Pepperdine University

Comments

[FlexSF]

Who was the unprofessional idiot, facing the camera, who was having seizures while Olson presented his argument?

The legal proceeding was satisfying to listen too; however, it is disturbing that the judiciary is as prejudiced as the media claims it to be. I expected all three justices to align with Olson, but sexism and homophobia die hard. The purported Mormon judge may side with the professional, anti-gay, religious fascists. That would be a crime!

Proposition 8 does not facilitate child rearing as the anti-gay, religious professionals argue. That is a bunch of garbage!

[No histronics]

Would there be some harm to straight people if gay people could marry?
I think not. In fact think of all the divorce attorneys who will profit.

Case closed - next.

[JC]

I want to see/read even 1 arguement on how this would affect anyone.
Other than saying "no," explain why and if you can (which I know you cant), use history to prove your case.
I can come up with many many reasons why heterosexuals are dangerous and the pain and suffering they have inflicted on others. And yes, I'm straight.

[dave]

Really? A constitutional scholar from Pepperdine is going to offer "unbiased" academic insight on Prop 8? The same so called law school that made Prop 8 the law by fearmongering and hate? Where Ken Starr is the Dean? And the Mormon professor did commercials in facor of prop 8?

Come on LA Times. This is INCREDIBLY insulting. What next? A Bob Jones professor to discuss racial desegregation laws?

[Don]

Another view is that this case is different because the people of California have already given same-sex couples all rights and obligations of marriage except the formal name, and thus evidence no dislike of same-sex couples or desire to harm them. Really, this could be a defense. The same could have been said about bathroom and drinking fountains for the blacks. They were give the all the rights of the whites but with seperate bathroom and drinking fountains. No matter what you call it, it is seperate but not equal and that is constitutional.