In case you haven’t been following, a federal court in California overturned the state’s ban on gay marriage as violating the 14th Amendment of the U.S. Constitution.  The court stated:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

“Rational basis” is a legal term of art.  Since marriage is a fundamental right, the government bears the burden of proving that Prop 8 is narrowly tailored to meet a compelling state interest (i.e. strict scrutiny).  The lower court found that Prop 8 could not even survive rational basis review (a lower form of evaluation), let alone strict scrutiny.  The court opinion in full can be found here.

The plaintiffs’ case was argued by David Boies and Ted Olson, ideological opposites who were the attorneys  in the 2000 Supreme Court battle Bush v. Gore which decided the Presidency.  And, of note, Ted Olson was the Solicitor General under President George W. Bush.  What makes this fact so fascinating is that this case could ultimately be decided by the U.S. Supreme Court.

Now the question seems to be whether same-sex couples can begin getting married immediately or whether the decision of the district court should be stayed until the Ninth Citucit can rule.  It is both an interesting case in terms of substantive constitutional law, and now civil procedure.  My University of Chicago law school classmate, Dan Powell, former clerk to Supreme Court Justice John Paul Stevens and now Deputy Attorney General of California, just filed with the Ninth Circuit the CA AG’s Opposition to the Emergency Motion for Stay Pending Appeal.  In terms of the stay, the California Attorney General’s Office is arguing that same-sex couples should be allowed to marry immediately since while there may be administrative burdens if the marriages are later declared invalid, these burdens are outweighed by the district court’s conclusion that a constitutional violation is occuring.

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