Prop 8 is Going Down…One Way or Another

Today, the Field Poll released their latest study on California opinions regarding marriage equality (PDF). It’s good news on the whole, with a slight majority favoring marriage equality. But there are some caveats:

The poll’s results – 51 percent in favor, 42 percent opposed, 7 percent undecided – show big differences among age groups, geography and party affiliation.

The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.

The current survey also found that support for same-sex marriage drops below a majority when voters are given another option – civil unions.(SacBee)

So, yes, there is 51% support, but that support is soft.  Basically, we are back where we were two years ago.  Prop 8 repeal can pass, but there is still a lot of work to be done.  This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side’s phony attacks. And of course, talk with our fellow Californians directly.  We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.

Of course, there’s still this Prop 8 trial going on, so I’ll just take a look at what one of the big California-centric pundits had to say.  Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective.  Butin today’s column, he just misunderstands the law. From today’s Bee:

In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal “Defense of Marriage Act,” which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.

Although Tauro’s ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states’ rights, to decide whether to recognize same-sex marriage, and the federal law “offends” those rights.

Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states’ rights matter, neither could they overturn California’s anti-gay marriage law, Proposition 8. (SacBee)

From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro’s decision actually strikes down Section 3 of DOMA under two constitutional provisions.  First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis.  This is the first of the two combined cases, the Gill v OPM case.

It is very clear that this part of the two decisions is clearly not a setback whatsoever.  This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government.  In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment’s protections in the Prop 8 case.  Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.

Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment.  Now, first, let’s just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn’t have much standing in the legal world.  The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.  

The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th).  Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause.  So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.

To bring it back around…Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.

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