Monday, November 17, 2008
Can Prop 8 be overturned by the Supreme Court? Professor Brian Gray of the U.C. Hastings School of Law wrote an op-ed for today's Los Angeles Times. The piece compares the Prop 8 fight to another fight from 1992, when Colorado sought to amend its constitution to deny homosexual persons equal rights. The litigation over that amendment resulted in Romer v. Evans, and the Court found that the amendment at issue did not pass constitutional muster. Professor Gray's comparison of the two cases is worthwhile reading.
Newsweek's Anna Quindlen has a piece which goes even further back in Constitutional history to make the point. She reminds us that if ballot iniatives were put forward in the 1950s and 1960s, most voters would have voted against interracial marriages. From that point she makes a linkage between the facts and policy behind the Loving case and the resistance to Prop 8.
Update to the Update: Ilya Somin of the VC has a must-read post on this subject. Professor Somin tackles this question: If courts rule in favor of same sex marriage, but the populace votes against it (as it has in several states, most recently California), then courts are ineffective agents of social change, right? Not exactly, according to Professor Somin. In sum, without the courts' intervention, there may have been less backlash, but the issue would also have gotten less exposure. Here's a brief bit: "From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway." There's much more, so please read and share!