But I’m a cynic, so feel free to ignore me. I’m the one who said, a year ago, that the U.S. was too racist to vote for a black man, and I was gloriously, delightfully, incredibly, totally wrong.

If that wasn’t far-reaching I don’t know what could be.

And on the Kate Kendall crush: politically speaking, I’d corroborate. She is a major hero, under phenomenal pressure, acting with enormous grace. At Pride this year (in SF) she was in the “Family Garden,” the kiddie playground commandeered by Our Family Coalition, COLAGE, and the LGBT Center. I went up to her and just gushed and thanked her three or four times, and asked could I take a fan pic with her. She was so kind. Not any kind of diva. Her young son (biracial, by the way; her partner’s black, for what that biographical detail’s worth) took this picture:

I went back and told my comrades, “That was a young Thurgood Marshall I just took my picture with.” Shannon Minter would have been a good gushing fan pic, too, but he wasn’t at the kiddie playground.

And I agree, it will be fascinating to read the other side’s arguments. I forget where I read it (maybe one of the links that you posted, LD) but some commentator compared this to the Prop 13 issue, where the CA Supremes held that even though it did effect a major shift in CA civil society, it didn’t constitute a significant change/ reordering of gov’t such that it shouldn’t have been up for a vote by the people.

Here we go!!!

This is better than a Perry Mason marathon!

As to the last matter — whatthe heck could be the backers’ response/counter-argument — good question. Your take makes perfect sense to me (i.e., a provision counter to the equal protection clause, something so fundamental, would be of necessity significant, & therefore revisionary).

But I’ve read a lot of nit-picky stuff about what qualifies as “revision” vs. “amendment,” a very specific distinction in the eyes of CA law. (The Volokh Conspiracy has lengthy, frequently informative, if often snarky discourse in the comments stream on one of its related posts.) Some stuff I’ve read has suggested that the mere 14 words of Prop 8 make it not a substantial change to the constitution, and that real, bona fide revisions actually simply alter more square footage of the document, or change how governance happens. As you probably know, as a law student, (and I hope I’m getting this right) one of the nine propositions the CA Supreme Court reviewed was the death penalty [People v. Frierson, 25 Cal. 3d 142 (1979)]. And it found that even something so fundamental as this (argument was that it inflicted cruel and unusual punishment) constituted a mere amendment.

This piece by Calvin Massey, “California Prop 8 Aftermath: Strauss v. Horton, the State Court Challenge,” at The Faculty Lounge was pretty informative, at least as a synopsis of previous relevant rulings. Especially regarding the death penalty issue, the one that got Rose Bird et al. off the court.

The soon-to-be notorious (more oft-repeated than “snakes on a plane”) “alligator” analogy is at the end of the piece. In an earlier LA Times piece “Supreme Court must walk fine line,” Dolan relayed a quip from former Supreme Court Justice Otto Kaus, who served on the court immediately following Chief Justice Rose Bird’s ouster (along with two other justices).

Kaus later said that, as hard as he tried to decide cases impartially, he was never sure whether the threat of a recall election — “the crocodile in the bathtub” — was influencing his votes.

“It was like finding a crocodile in your bathtub when you go to shave in the morning,” Kaus said. “You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”

The environment seems much friendlier in state courts. At the federal level, we don’t have nearly the recognition and protection that we have at the state level. The executive and legislative branches of the federal government have made no bones about giving us unequal protection under federal law, and have been unchallenged by the judiciary (although I don’t know the case law surrounding any attempts to have it challenged, if there is any). Given the current national climate of letting states decide for themselves on this issue, I would be surprised if the federal courts would be willing to take it up.

Prop 187 was a bit easier for the federal courts to wrangle with, because it dealt with the denial of rights that were generally provided in other states–the decision there didn’t cause havoc throughout the country–and similar issues had been touched on in previous Supreme Court decision. As opposed to here, where a decision in our favor (that denying same sex marriage violates the 14th Amendment) would overturn law in 48 states. I think that is a leap the federal court would be very loathe to make. Making the issue even touchier is that this is not a question just of state statute, but of state constitution.

Generally, although it doesn’t make for a good story and it makes progress veerrry verrrry slow, the best way to get decisions that go your way is to ask for the smallest stretch possible from the courts. Despite all the talk about activist judges, many judges don’t see their role as changing or creating law. It’s a safer bet to ask the state court to find that, under state law, this change is fundamental to the state constitution and should have gone through a different administrative process; than it is to ask the federal court to issue a sweeping declaration that denial of same-sex marriage is a violation of the 14th Amendment. Sexy? No. Infuriatingly slow-paced and completely unsatisfactory? You betcha. But going down in flames on a 14th Amendment challenge would set us back so much farther than the passage of Prop 8, it wouldn’t be funny.

Plus, yes, there is also the fact that if it got to the current Supreme Court, I don’t think I’d want our fate in the hands of the current crew up there. (That being the judicial crew, not our community’s legal crew, lest there be any misunderstanding.)

With that, I really need to go do classwork and try not to fail out of school on account of Prop 8.

What I REALLY want to know (I know, this isn’t classwork) is what the backers’ responses are to the argument that a provision counter to the equal protection aspect of the state constitution is a significant change (and thus should have gone through the revision process). I know I’m biased and am probably tunnel visioned, but I haven’t the faintest idea what the counter is to that! The only thing I can think is that they’ll try to argue that Prop 8 does not do that, but in light of the court’s previous ruling I don’t see how that argument would have a snowball’s chance in Hades. So, I’ll just have to wait for December 19 to read the responses. (Which is coincidentally also the last day of finals, so I’ll be reading them with a lot of beer.)

[Date night (woot!) slowed your comment's seeing the light of day.]

I am definitely not a lawyer, nor do I play one on TV, nor on the internets. All’s I know is that what I’ve heard has been that the current make-up of the federal Supreme Court is such that any arguments taken directly to them right now are discouraged. I recall reading some statement to that effect (though where, now, I don’t know, though, you know: date night might diminish the mental faculties). Though I do know, as of course you do, that Prop 187 was struck down based on that very (abrogation of the Equal Protections Clause) argument.

One can only guess that the anti-8 legal folks are working with the finest legal insights available?

I do also know (again, from a non-attorney POV) that several of the suits brought also address the inherent contradictoriness of the constitution, vis-a-vis the equal protection clause. Kind of a more Prop 187-ish argument. Though the thing the press keeps picking up on is the revision vs. the amendment argument.

?

A hearing means the lawyers for both sides will go argue before the judge. By March they’ll have fully briefed the issue, meaning that the pro gay marriage folks will have submitted an opening brief, to which the anti folks will reply, to which the pro folks will issue a concluding reply. The judge will read those briefs, and, barring the need for supplemental briefing on any issue (which is basically when the judge would say, tell me more about the law on a particular issue) which would delay the hearing, oral argument will take place in March. So basically there is an opportunity for both sides to present written and oral argument, which in our legal system allows for arguments to be developed fully, most of the time.

What I don’t understand is why the lawyers for the No on 8 campaign didn’t take this to federal court right away, for a challenge under the U.S. Constitution. I have confidence that strategically it’s the right course of action, but I haven’t heard an explanation yet as to why that is. See, e.g., http://en.wikipedia.org/wiki/Prop_187. To me it seems like the equal protection clause of the 14th amendment would be the strongest and most direct mechanism by which to challenge this state constitutional amendment, but I’ve only been practicing law for a year and a half, so I guess it’s good they didn’t hire me as their lawyer!