Reply #5: Here is some more info. about how the CSC viewed gay minority status before Hate8

[bluedawg12]

Here is what CSC said before PHate8

http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,1,4027698.story

>>In a 4-3 decision, the justices rule that people have a fundamental 'right to marry' the person of their choice and that gender restrictions violate the state Constitution's equal protection guarantee<<

By Maura Dolan, Los Angeles Times Staff Writer
May 16, 2008

>>The 4-3 ruling declared that the state Constitution protects a fundamental "right to marry" that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.


The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state's high court the first in the nation to adopt such a stringent standard.

The decision was a bold surprise from a moderately conservative, Republican-dominated court that legal scholars have long dubbed "cautious," and experts said it was likely to influence other courts around the country.

But the scope of the court's decision could be thrown into question by an initiative already heading toward the November ballot. The initiative would amend the state Constitution to prohibit same-sex unions.<<
.........

http://writ.news.findlaw.com/amar/20080522.html

By: Vikram David Amar
Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun.

>>But viewed from a different angle, the people's power to undo last week's ruling via statewide simple-majority popular vote seems more troubling. After all, one of the rationales relied on by the California Supreme court in invalidating California's statutory ban on same-sex marriage was the notion that government discrimination on the basis of sexual orientation should be viewed skeptically, because gays and lesbians are groups that have been historically victimized by invidious and prejudicial treatment that bears no relationship to their ability to perform in or contribute to society. This history of irrational prejudice, the court said, was "the most important factor in deciding whether" laws that treat gays and lesbians differently from straight persons should be constitutionally suspect.

But if the very reason why discrimination against gays and lesbians is constitutionally wrong is that the political majority has tended in the past to treat them unfairly, isn't it odd that the same political majority can, with a simple initiative vote in November, impose its will on them yet again?

<snip>

The California Supreme Court Based Its Ruling Only on the California Constitution, Yet the U.S. Constitution Will Come Back Into Play if CMPA Passes in November

State constitutions operate not just in the larger context of morality and justice, but also in the larger context of the U.S. Constitution. And that fact raises some interesting questions about the interplay between California and federal law. In particular, what effect does the federal Constitution have on last week's ruling, or November's initiative outcome?

As to last week's ruling, the federal Constitution is beside the point. As noted earlier, the California justices ruled under state law only, and there is certainly nothing in the federal Constitution that prevents state law from recognizing same-sex marriage. Although the U.S. Supreme Court has not indicated it is yet ready to recognize a federal constitutional right to gay marriage (a point to which I shall return later in the column), states are free to do what they want in this area by way of affirmatively equalizing marriage rights.

<snip>

( think this part is about “settled law” or stare decisis)
Under the due process clause of the U.S. Constitution's Fourteenth Amendment, states are limited in their ability to upset settled expectations about important property and liberty interests. And for the California constitution to tell same-sex couples that they are free to marry (as it currently does), and then tell them (after the constitution is altered in November) that their decision to marry is no longer honored by the State may unfairly disturb their reliance interest, and upset their reasonable expectations.

At the very least, the possibility of a violation of the Fourteenth Amendment should leave California courts (which will interpret the CMPA) inclined to read it narrowly and to deny it any retroactive effect.

<snip>

What Are the Chances that a Federal Constitutional Right to Same-Sex Marriage Will Be Found?

Finally, what, if anything, does last week's ruling tell us about a federal constitutional right to same-sex marriage? Many commentators will say, "Nothing at all," because the meaning of the federal Constitution is distinct from the meaning of state constitutions. It is true that federal law and state law have separate lives. But it is also true that they often influence each other.

Another area, at least for many Supreme Court Justices, is substantive due process. What counts as a federally-protected "fundamental right" depends on what states have done, and what they are continuing to do. While Massachusetts and California are still the outliers in the national gay-marriage picture, those two States do comprise almost one seventh of the American people. And it won't take many more (populous) states following their lead to create a trend that might count in the eyes of Justice Anthony Kennedy and the other key Justices whose views on the meaning of fundamental federal rights dictate outcomes in the Supreme Court.

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