Proposition 8 Struck Down by Judge

by Ryan on August 5, 2010

in Culture,Election 2008,Judicial Watch,Law,Politics

Proposition 8 in California was a ballot initiative in 2008 which defined marriage as a union between a man and a woman.  It passed with 52% of the vote and got about 7 million Californians to vote for it.  Yesterday, in a 136-page decision, a District Judge Vaughn Walker believed that the proposition violated both the equal protection and due process clauses of the federal constitution and saw no logical reason why gay couples couldn’t marry, overturning the will of the people of California.  It will be appealed, end up in the 9th Circuit Court of Appeals and eventually go to the Supreme Court with a 5-4  ruling with Justice Kennedy agreeing with Walker, I think.

I do think that this issue has major slippery-slope potential, legally speaking, based on the Law of Unintended Consequences which many are ignoring at this point.

Issue 1:  Once one new permutation of marriage is somehow found in the Constitution, there may be an influx of other permutations forcing the legal system to review polygamy laws and statutory age of consent laws, etc.  One may say that’s ridiculous, but once this door is opened why should it stop there, legally speaking?  Wouldn’t it be easier to push for the government to recognize no marriage licensing at all?  That would solve many problems and reduce the number of legal challenges, but would not be very popular.  But, then again who needs the people when you have the courts!

Issue 2:  I’ve heard that there may also be a larger Article 4 Section 1 issue here:  if a gay couple gets married in Massachusetts and moves to Nebraska, does Nebraska have to recognize their license?  Following, if Oklahoma issues concealed weapons licenses should New Jersey (which doesn’t give those licenses) have to recognize them based on the full faith and credit clause?  We already recognize each others state heterosexual marriage and driver’s licenses.  Guns may have little to do with marriage, but who can say the reach of any future SCOTUS decision to affect Article 4′s relationship between the states must stop at gay marriage licenses once that door is opened?

Ultimately, I think that this issue is more complicated than merely two people loving each other wanting a legally protected union and am concerned that many involved aren’t fully aware of the legal ramifications.

If someone can assuage my concerns and tell me why they’re ridiculous, please leave a comment.

{ 2 comments… read them below or add one }

Matt August 5, 2010 at 5:28 pm

I don’t see how there can be a legitimate argument that prop 8 violates the equal protection clause. The law clearly applies equally to everyone… Everyone has the same right to marry someone of the opposite sex. Just because some people would prefer to marry someone of the same gender doesn’t mean they don’t have equal protection under the law. If prop 8 violates equal protection, the same argument could be made for almost anything… Suppose my neighbor grows tobacco plants, and I would prefer to grow marijuana plants. Is it a violation of the equal protection clause that my neighbor can grow his preferred plant, but I’m not allowed to grow mine?


Ryan August 5, 2010 at 5:35 pm

You make a good, lucid point.


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