DISQUS

a public defender: So what’s the equal protection clause for, anyway? | a public defender

  • Miranda · 1 year ago
    Great post, Gideon. Can't wait to see how it all unfolds. I wonder how many con law professors will use some fact pattern like this on a final exam. Good stuff.
  • Gerard · 1 year ago
    Do we want one group of people deciding the rights and freedoms of another group?
    Well, we do it all the time. Like on election day when a majority of citizens decided (some) 17 years can vote in a primary.

    And a good chunk of our legal code does that too, I'd daresay.
  • Gideon · 1 year ago
    Oh c'mon, the distinctions between your examples and this are obvious. Don't make me spell it out.
  • Jen · 1 year ago
    What I'm curious about is this. Under the Equal Protection clause, if Prop 8 stands, are ALL marriages in California now null and void. For example, if the state must stop giving marriage licenses to same-sex couples until this is resolved, shouldn't they stop giving marriage licenses to straight couples too? Equal Protection, right?
  • MikeD · 1 year ago
    Think of it as a series of decisions:

    1. Does Prop 8 actually repeal some of the extent of equal protection? Or does it stand alongside equal protection?

    If court finds that Prop 8 stands alongside equal protection, I think the court will find for no marriage. In the original In Re Marriage Cases decision, the court said that either no marriages or marriage for all would meet the equal protection requirement, but the court choose the former because it was clearly in accordance with present public policy.

    2. If the court finds that Prop 8 does repeal some of the extent of equal protection, is that a revision or an amendment?

    Note that by the time you reach this decision, you already have accepted that Prop 8 DOES invalidate equal protection, which I think requires the judges to at least take more seriously the argument that this is a revision rather than an amendment.

    So for there to be marriage inequality, the Yes on 8 litigants will have to win both arguments- that Prop 8 does modify equal protection, and that modification is an amendment, not a revision.
  • MikeD · 1 year ago
    A. Does Prop 8 end equal protection? If yes, skip to B.

    If no, then the court must reconcile equal protection with no marriages for same sex couples. They have, in fact, already answered this in the decision of In Re Marriage Cases. The decision actually says that either marriage for all or marriage for none would fulfill the constitutional requirements, but that there is clear that marriage for all is more in line with state policy.

    Prop 8 has changed that state policy, explicitly prohibiting the court from requiring marriage for all. Therefore, to reconcile Prop 8 with equal protection, the court would have to order that nobody can have marriage. Whether this would be retro-active would be a complex question, but shouldn't impact the above reasoning. Also, the public would likely then reverse Prop 8 at the next opportunity, as a way to get the rest of the marriages back.

    B. Does ending equal protection revise (as opposed to amend)?

    If Yes (it revises), then the initiative does not take effect, and since the legislature won't pass a ban on same-sex marriages, this is pretty much over.

    If No (it amends), then presumably it can be amended back.
  • Dick Mills · 1 year ago
    I concur that this is a great post. And, I apologize in advance because my question is a bit wordy.

    My question is why no one seems to ever bring up REITMAN v. MULKEY. This is a case where Proposition 14 was approved as an amendment to the California constitution by 65% of the electorate in the early 1960's. The California Supreme Court invalidated the amendment on equal protection grounds. The amendment was designed to overturn fair housing laws passed in the California legislature which made it illegal to discriminate in sale or leasing of housing.

    The California decision was appealed to the U.S. Supreme Court which upheld the California court's decision. Some have made the argument to me that the only reason that it could be appealed at the Federal level was because the California court utilized the Federal equal protection clause to arrive at the decision which overturned the California amendment, but I can find no evidence of that.

    In fact, California's equal protection clause directly references the fourteenth amendment to the U.S. constitution, which basically would mean that every equal protection ruling would be based on the fourteenth amendment.

    Am I missing something?

    Thanks, and here is the case reference:

    U.S. Supreme Court
    REITMAN v. MULKEY, 387 U.S. 369 (1967)
    387 U.S. 369

    REITMAN ET AL. v. MULKEY ET AL.
    CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
    No. 483.
    Argued March 20-21, 1967.
    Decided May 29, 1967.

    http://caselaw.lp.findlaw.com/scripts/getcase.p...
  • Jen · 1 year ago
    Thanks for the reply Mike. As I read the opinion for In Re Marriage Cases it seemed to me the whole premise of the decision was the Equal Protection Clause. It's been a long, long time though since I've read case law so my understanding is fuzzy at best.