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Originally Posted by Kelsium
the equal protection clause of the 14th amendment will be a tricky one to get around. Does anyone know if strict scrutiny has been granted to the opponents of proposition 8?
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They can easily get around if they want to. They can avoid it altogether by finding the petitioners have no standing or finding cert improvidently allowed, or they can hold that the jury is still out, so to speak, on whether same-sex marriage creates any problems and that states therefore can reasonably exercise their judgment on the question.
I said earlier I think they'll punt, and I still would wager on that after hearing more reports and reading some of the transcript. My hunch is that enough of the justices, conservative and liberal, will want to avoid another
Roe v Wade, which J Ginsburg has described as the right decision, but a decision that went too far too fast. I'd guess they'll prefer to let the debate and the political process play out, rather than have the Court decide by fiat for the whole country.
Yes, for proponents of same-sex marriage that will take longer, but it tends to result greater public "buy in" as it were when the people, either at the ballot box or through their elected representatives, decide the issue rather than having the (unelected) judiciary decide it for them. And the Court can see as well as anyone where the momentum on this is headed.
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Originally Posted by Low C Sharp
You mean by the Ninth Circuit? The Supreme Court has never held that strict scrutiny should be applied in cases of discrimination based on sexual orientation. The best SCOTUS cases for gay rights proponents (Romer v. Evans and Lawrence v. Texas) are based on either rational-basis scrutiny with teeth, or intermediate scrutiny, depending on which commentator you ask.
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But
Loving v Virginia does speak of marriage as a fundamental right.
If they wanted to go down that road, that could lead to strict scrutiny as equal protection claims of denial of a fundamental right involve strict scrutiny regardless of whether the plaintiff is a member of a suspect class or not.
As best I can tell, the trial and appeals courts avoided the scrutiny question altogether by saying that there was no legitimate basis for Prop 8, rational or compelling or whatever.