California Prop 8 Aftermath: Strauss v. Horton, the State Court Challenge

11/06/08 The Faculty Lounge: UC Hastings School of Law Professor Calvin Massey doubts that Strauss v. Horton petitioners will convince the Court that Proposition 8 is a constitutional revision:

"The contention of the Prop 8 opponents in Strauss v. Horton is essentially that an elimination of a judicial intepretation of California's equal protection guarantee works such a fundamental change in the constitutional structure than it can only be accomplished by revision. Yet, Frierson and Crawford upheld initiatives that did just that. (Crawford did so at most by implication.) The Prop 8 opponents distinguish both cases (the Frierson change applied to all Californians, Prop 8 only applies to gays and lesbians; Crawford only involved a remedy), but I am not convinced by either attempt to distinguish these cases. Raven involved a complete abdication of constitutional independence; Prop 8 is a specific limit on the intepretation of California's equal protection guarantee but otherwise leaves California courts free to do what they have always done in interpreting the state constitution. "

Massey concludes that "[f]or better or worse (no pun intended), this is an issue that ultimately must be fought out in the context of the federal Constitution. ."