Prop 8 Rejection Might Be Limited to California

Very quickly. From Plaintiffs-Appellees’ papers opposing an emergency stay at 7:

The issue in Baker is different from that pre-sented by Plaintiffs’ constitutional challenge because, unlike California, Minnesota had not used the ballot initiative process to strip its gay and lesbian citizens of their previously recognized right to marry…

Why is this important? Because it is yet another important distinction between the facts in this case and just a general right to gay marriage. I would very much like to see this declared a right, but I would also like to make sure that the striking of Prop 8 continues.

Marriage is one of the areas traditionally reserved to the states in the Tenth Amendment. As such, there is at least an argument that each state may determine what its marriage rights are. Indeed, this is the case with cousin marriage, which is allowed in some states and not in others. Of course, to the extent that anything a state does, even under the Tenth Amendment, conflicts with Constitutional rights, such as those in the Fourteenth Amendment, they are void. But, I’m making this point to show a way out for the courts, not necessarily the most sound legal decision.

The technical action that the district court took in this case was to strike down Prop 8, which was a specific law enacted by the voters to repeal an existing right, as the Appellees note in their papers. It could arguably be the case that Prop 8 taking rights away is unconstitutional but that this does not compel it being granted elsewhere. If this is the case, it would mean that only in places where there is an existing state-based right to gay marriage would this apply. Splitting hairs? Yes. Some might call it “judicial minimalism.”

This is separate and distinct from the separate standing issue that many feel may cause this case to end before there is a total reckoning.

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