Friday, May 16, 2008

California What-If's

Arthur Leonard never disappoints. He has already brought his legal noodling to the California Supreme Court okay of same-sex marriage. I expect more from him and his remarks generally prove the most apt and insightful.

Immediately following the ruling, non-California-based Alliance Defense Fund said it would ask the court to delay implementation to permit advancing the November amendment to restrict marriage to a man and a woman. Leonard notes that:
"The court concluded that their interest in the litigation justifying participation was at an end when the court halted the San Francisco marriages in 2004. Presumably, the courts would now find that ADF lacks standing to seek a stay. Logically, it would be up to the losing defendant to seek a stay, and that would be the State of California. In this case, the state was officially represented by the Attorney General, but the Governor hired separate counsel to represent him in the arguments before the Supreme Court. The Governor has announced his acceptance of the court’s decision and his opposition to the constitutional amendment, so it seems unlikely he would seek a stay, and that leaves Attorney General Jerry Brown, who seems an unlikely supplicant for such relief. So I will cautiously predict no stay..."
Another big treasure in the ruling is that sexual orientation is to the court a suspect class. When this is not the case, plaintiffs trying to prove discrimination have a huge burden. They must prove the negative that there is no rational basis for discrimination. With a suspect class, however, the government must prove that it has a compelling public-interest reason to allow discrimination.

As an aside, he notes that he sees a related weakness in the Massachusetts Goodridge decision. While the Supreme Judicial Court here ruled that there was no reason to forbid same-sex marriages, it didn't clearly state that sexual orientation is a suspect class.

More to come on this.

Meanwhile, the anti-marriage folk at Protect Marriage are wired for the DOMA-style amendment. You can see their nasty work in their amendment brochure and their simplistic talking points.

Sunday Update: As usual, the Leonard Link delivers. The law professor/not a pundit looks at the likely options and angles of attack on the California ruling. He doesn't call the amendment vote, but gives good legal background on possible court appeals at state and federal levels.

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