Let's just all admit it. False optimism aside, the religious wackjobs who spent millions upon millions of dollars to deny equal rights to U.S. citizens because of whom they choose to spend their lives with have won the day in sunny and supposedly liberal state of California. As of 9:40 ET this morning, with 95% of precincts reporting. the Intolerants were winning by 403,573 votes out with about 522,329 remaining to be counted. Those opposed to restricting civil rights in this country would have to take 80% or more of those remaining votes to win. So, the 2 million absentee ballots received yesterday aside — as they're likely to break the same way as the vote broke, if not more conservatively — it's over. The question remains, though: where do equality advocates go from here?There will be a case filed by the LGBT community against the amendment, though on what grounds that remains unclear. If their legal strategy through the years has shown one thing, it will resolutely not be a Supreme Court challenge, not right off the bat. They'll likely start slowly in the state courts, seek an injunction and try to have the proposition overturned on technical legal grounds. It's a decent strategy...if you're not a man or a woman in, say, the Midwest who would really, really like the state to acknowledge the legal validity of your same sex relationship. Basically, everyone acknowledges that same-sex marriage advocates are trying to wait out the Supreme Court. But why? In December, a case emerged in Rhode Island that seemed like it could be suitable for, at least, overturning the so-called "Defense" of Marriage Act, which says that states need not acknowledge the validity of gay marriages in other states. In this case, a couple married in Massachusetts later moved to Rhode Island and even later sought a divorce — but since Rhode Island doesn't recognize their marriage, it can't grant them a divorce. At the time, my (conservative) legal sources told me that this case could present a clear challenge to the DOMA under Article IV, Section 1 of the Constitution, or the Full Faith and Credit Clause. According to my sources, the clause requires states to accept the validity of contracts signed in other states and marriage, according to the state, is nothing but a contract. Even conservative Justice Antonin Scalia has stated that he's not sure he could rule in favor of upholding the DOMA if it were challenged on Constitutional grounds. Of course, if this were to actually happen, it would set California up to have to acknowledge the legitimacy of same sex marriages performed in other states even as its constitution didn't allow for them to be performed in-state, but stranger things have happened. Contacted for comment, Harvard professor and constitutional law scholar Lawrence Tribe disagrees that a DOMA challenged based on full faith and credit is a viable legal strategy.
There is no chance that the Court would hold that DOMA violates the Full Faith and Credit Clause, which unfortunately doesn’t compel states to accept marriages from other states and wouldn’t compel them to do so even in the absence of DOMA. The only possible constitutional challenge to laws like Prop 8 would be that it violates the 14th amendment’s equal protection clause. I believe such a challenge has merit but am quite confident that the Supreme Court as currently composed wouldn’t agree. And because the only Justices who are likely to be replaced during the Obama presidency – at least in his first term – are those to the left of center, there is no prospect that this unfortunate situation will change in the foreseeable future.Well, that's depressing, even if it is some legal recognition that marriage provides people protections under the law and denying it to people based on sex is a likely violation of the 14th amendment. Going back to my initial, more conservative source, he agrees with Tribe's analysis of the equal protection clause's applicability to same sex marriage, adding that it is his understanding that Scalia might, in fact, rule the same way. He points out that while the Court does not recognize that the state has a compelling interest for discriminating or differentiating based on race, that it does, in fact, allow for some level of acknowledgment of sex within the law (see: women in the military). But, even then, the argument that the state has a compelling interest in prohibiting its citizens from getting married based on the sex of the citizen they wished to marry would be a stretch. But that, actually, brings up another question . The Equal Rights Amendment would have curtailed even more sharply the "compelling interest" argument offered for sex differentiation/discrimination allowed by the Supreme Court — in fact, that was one of the reasons it failed. It said:
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.co-sponsored legislation this Congress to amend the Constitution in exactly this way. Just, you know, pointing it out, wish-list style. Especially since, in my opinion, the Democratic Party's pander-y official opposition to marriage equality apparently let plenty of Democrats feel free to vote for this abhorrence. I think we're owed one. Proposition 8-Same Sex Marriage Ban [San Francisco Chronicle] Same-Sex Marriage Ban Winning [San Francisco Chronicle] Related: Marriage Really Is for Life (If You’re Gay) [Wonkette] Equal Rights Amendment [Wikipedia] Co-Sponsors, Senate Joint Resolution 10 [Thomas] Earlier: Marriage Equality? Money Talks, And Politicians Ought To