Legal Commentary

Prop 8 Decision at 10am PT

By Jeralyn

Teddy at Firedoglake tells us what to expect from the Prop 8 decision. He says there are two questions and three possible scenarios.

The opinion will be released here at 10 am PT.

The Court's Prop 8 page (with prior rulings, briefs and background) is here. [More...]

From Teddy: Question One:

The first question is whether or not Proposition 8 is such a sweeping change to the California constitution that it should have been handled differently; fundamental rights of a minority should not be put to a vote. Because the Court previously ruled that marriage is a fundamental right, it's conceivable that they will rule that this right cannot be taken away from a minority of the citizenry by a popular vote.

Prop 8 is a sweeping revision to the California constitution, this logic goes, and therefore needs to be legislated and then presented to the electorate for a vote. Because Prop 8 was never voted on by the California Assembly and Senate, but made it onto the ballot via the signature-gathering referendum process, it short-circuited the proper mechanism and should be overturned.

Question two:

The second question, which really only comes into play if Proposition 8 is upheld, is what does California do with all the marriages -- perhaps as many as 18,000 even though no one kept track -- that happened after the Court ruled marriage was a fundamental right and couldn't be denied same-sex couples (May 2008) and before the voters narrowly approved Proposition 8 that November?

Presumably, if the Court overturns Proposition 8, these marriages will stand. But if they uphold Proposition 8, are these marriages valid?

45 minutes to go. I will update when the decision becomes available.

Full post as published by TalkLeft on May 26, 2009 (boomark / email).