Prop. 8 is a tangle for state's high court

11/23/08 Sacramento Bee: In this opinion article, former Bee legal reporter Claire Cooper quotes Pacific McGeorge law Professor Lawrence Lavine, UCLA law Professor Eugene Volokh, and UC Davis law professor Vikram Amar. Cooper observes that courts have a "high responsibility" when reviewing equal protection challenges.

Lavine said that the outcome of Prop. 8 litigation will depend on how the California Supreme Court define the case. "If the subject is marriage, then Proposition 8 is a constitutional amendment. But if the subject is who can enjoy equal protection of the laws, it's a revision and a sea change in the way the constitution is applied to protect all of us."

Volokh appears to share the view of Alliance Defense Fund's senior counsel, Glen Lavy - that the Court will restore official recognition of marriage as limited to heterosexual couples.

In Hi-Voltage Wires Works Inc. v. City of San Jose, 24 Cal. 4th 537 (2000), the California Supreme Court upheld Proposition 209, which prohibits affirmative action in university admissions, public employment, and government contracts. Amar believes a Court which upheld Prop. 8 is unlikely to overturn Prop. 8.

Cooper states that the "U.S. Supreme Court 70 years ago said courts have a special duty to protect groups whose access to the political process has historically been hampered by public prejudice." (She appears to reference dictum by Justice Stone in U.S. v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938). Justice Stone identified a central purpose of "strict scrutiny" review of equal protection claims - to examine whether " prejudice against discrete and insular minorities ... tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.") "Amar says that declaration is 'the very premise of modern equal protection law.' Echoes can be found throughout the state Supreme Court's decisions interpreting the California equal protection clause."