It Aint Bragging If Its True (Ah, What The Hell…It’s Bragging Time)
[posted by Justin Levine]
Let history record that I was the first blogger to point out that the California gay marriage decision was far more significant than many first realized due to the fact that it labeled homosexuals as a “suspect” class entitled to “strict scrutiny” under an Equal Protection Clause analysis (essentially treating laws that discriminate against homosexuals the same way as it would treat laws discriminating against racial minorities).
But now that Marty Lederman has followed my lead on this, it seems to be getting all sorts of attention. Alas, my legal genius seems destined to continue in relative anonymity in the blogosphere. [Hey Court TV…Call my agent!]
But seriously, this is a vital aspect of the decision that has been largely drowned out in the more immediate political debate over the marriage issue. It may have a far reaching impact that has yet to be studied in legal circles.
[Justin Levine]
The case does have one silver lining: the gay activists who claimed Prop 22 applied only to out of state marriages got pwn3d. That seems like a Pyrrhic victory for now, since Prop 22 itself got pwn3d, but it could head off future litigation if the constitutional amendment passes (I’m assuming it’s worded similarly to Prop 22.
Xrlq (8374fb) — 5/16/2008 @ 9:52 pmThat’s Tru TV to you, counselor.
Nice catch.
Pablo (99243e) — 5/17/2008 @ 4:55 amExcuse my ignorance, but what is “pwn3d”?
Another Drew (8018ee) — 5/17/2008 @ 7:37 amDrew – cyberspeak for “owned”
LYT (b67340) — 5/17/2008 @ 10:41 amIf the state constitutional amendment passes, the only recourse would be to the federal courts under the federal constitution. Then we will see how far the “full faith and credit” clause is applied.
Bradley J Fikes (1c6fc4) — 5/17/2008 @ 12:06 pmYep. If California doesn’t reverse itself with a state constitutional amendment that their Supremes can’t subvert (I suspect they won’t try to subvert it, actually–they remember all too well what happened to Rose Bird, et al when they went too far), DOMA and the Full Faith and Credit clause will be the next battleground, with the Ninth Circuit Clown College getting into the act. I suspect the Republicans will start getting more money from religious conservatives fairly soon as ads reminding everyone that the next President will get at least one and probably two or three appointments to the USSC start airing.
M. Scott Eiland (b66190) — 5/17/2008 @ 1:05 pmI don’t see how a full faith and credit challenge could prevail, unless the courts read the full faith and credit clause this way:
Xrlq (c32098) — 5/17/2008 @ 1:40 pmThe constitutional amendment’s wording is *identical* to Proposition 22’s wording.
aphrael (e0cdc9) — 5/17/2008 @ 2:31 pmI’m pretty sure that the dissents brought that point up rather forcefully.
Kevin Murphy (805c5b) — 5/17/2008 @ 3:58 pmWouldn’t it be a lot more efficient and economical if we CA people just save all this time, money, and angst by just shoving all our Props under the noses of the state supreme court judges for a pre-ballot sniff test before we vote? This is getting pretty old getting jerked around time after time. Never saw an approval rating done on the CA judiciary, but I wouldn’t be surprised if it was below the legislators. That would place them somewhere in the space below the snake’s belly and before you reached dirt.
allan (1b6aaf) — 5/18/2008 @ 1:53 pmmr. levine, your legal genius would stand a better chance of being recognized if you used the correct term “suspect classification” instead of “suspect class”, which sounds like any guy on a barstool talking.
assistant devil's advocate (b0266c) — 5/18/2008 @ 8:41 pmComing from our resident troll who is just too gosh-durned smart to adhere to standard writing conventions, I find that rich indeed. In theory, though, I agree with the substance of your simultaneously illiterate and pedantic statement. Justin’s use of the phrase “suspect class” as a shorthand for “suspect classification” does indeed make him sound every bit as legally illiterate as … oh, I don’t know … the average law professor, who employs the shorter phrase all the time, or the California Supreme Court, who used it twice in their own friggin’ opinion.
Dumbass.
Xrlq (8374fb) — 5/19/2008 @ 3:54 amScary language on the marriage issue from page 6:
Is it still a slippery slope argument if the Court goes out and *says* that they’ll go all the way to the bottom?
Joe M. (5d215f) — 5/19/2008 @ 9:21 amSame-sex marriage: a fait accompli…
As I noted in a comment on Pandagon, I think that same-sex marriage is pretty much of a done deal.
Common Sense Political Thought (73d96f) — 6/2/2008 @ 3:57 amPolitically, I think that same-sex marriage is inevitable. Even if the California initiative passes, it could not invalidate any same-sex marriages perf…