My legal analysis of same sex marriage in CA - Please comment [View All]

[Cptn Kirk]

Hi all,

Please comment on this and let me know your thoughts. (please be well read in law)

Basic situation is this. In 2000 proposition 22 in CA was passed. This added section 308.5 to the CA Family Code. Section 308.5 states “Only marriage between a man and a woman is valid or recognized in California.”

NOW - let's flash over to the CA constiution. Article ONE.

"SEC. 7. (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws; provided, that nothing contained herein or elsewhere in this
Constitution imposes upon the State of California or any public
entity, board, or official any obligations or responsibilities which
exceed those imposed by the Equal Protection Clause of the 14th
Amendment to the United States Constitution with respect to the use
of pupil school assignment or pupil transportation. "

further reads

"(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked."
(I believe the last line of section B would mean that in order to deprive same sex coples of marriage, the legislatures only option would be to revoke marriage for opposite sex couples as well)

Now I am pretty damn sure you could argue homosexual people to be a "class of citizens". As well as heterosexual people to be a "class of citizens".

The argument is that marriage falls under "privileges
or immunities". Further, to deprive same sex couples of marriage the law is NOT being applied to all citizens on the same terms.
This sounds like a VERY strong and legally sound argument to me.

Ok, here is where it gets complicated.

The federal DOMA says that states have the authority to define marriage. As you all know, federal law trumps a state constitution.

HOWEVER - I would imagine that the federal DOMA could just as easily be ruled unconstitutional under the 14th amendment to the US constitution.

So I would imagine it would happen like this IF the courts uphold the law.

1. The CA state courts hear this case. They eventually rule the state DOMA unconstitutional as per the state constitution.

2. That ruling is appealed to the federal courts using the federal DOMA as an argument. BUT the federal courts (and maybe I am naive, but I believe the current SCOTUS would) rule the federal DOMA unconstitutional. OR they could rule regardless of the federal DOMA, marriage is a state matter and the state court ruling stands. End of story.

Now this would be a long drawn out legal battle, but I believe IF the law is upheld this is a potential outcome.

Thoughts?