Chemerinsky: odds favor court upholding Prop 8

by on February 18, 2009  •  In Marriage

As the March 5 oral argument date draws near for the California Supreme Court to hear the challenge to Prop 8, more and more public events are focusing on the issues raised.  At a forum at UC-Irvine Law School, constitutional law scholar Erwin Chemerinsky weighed in, pessimistically.  From the university newspaper, with a HT to Michael Ginsborg's excellent Prop 8 legal commentary blog:

Dean Chermerinsky agreed that Proposition 8 was an “enormous setback” for marriage equality but added that he still “believes [that] in [his] lifetime same-sex marriage will be allowed throughout the United States.”

Chermerinksy said that, “The issue of marriage equality is a relatively easy one, it is about equal protection. Gays and lesbians should have the same right to express love and commitment to a marriage as heterosexuals have always had.” He added that they should have “the same opportunity to be disappointed by marriage that heterosexuals have always had.”

After pointing out the weaknesses in the most common arguments made against marriage equality, Chermerinksy then proceeded to explain the central legal question at issue in the court case: whether Proposition 8 is an amendment to or a revision of the state Constitution or not.

“The math [seems to] favor supporters of Proposition 8 not opponents of Proposition 8,” Chemerinsky said, discussing the 4-3 split of the Court when it struck down a previous ban on gay marriage. “[Supporters of proposition 8] only need to get one other vote, while opponents have to keep all four,” Chemerinsky said.

It is likely that Proposition 8 will be upheld, but that it will not be made retroactive. Thus, all marriages performed between May and November of 2008 will remain legal. However, Chemerinsky offered some hope for those who want a complete invalidation of the ban. “Those who [make predictions] often eat broken glass,” Chemerinsky said.


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