California's Prop. 8 legal challenge harkens back to 1966 housing measure

02/18/09 Sacramento Bee: In a 1966 "in a case [Mulkey v. Reitman, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967)] that divided Californians as much as same-sex marriage does today, the court overturned a voter-approved measure [Prop. 14] that had allowed housing discrimination based on race."

The Sacramento Bee reporter, Aurelio Rojas, appears at odds with his purpose. He relies on "legal experts" to undermine any basis for analogy to Mulkey v. Reitman, even if one obvious difference is that anti-Prop. 8 petitioners do not base their argument on equal protection under the 14th Amendment. The "legal experts" include Andrew Pugno, attorney for the Yes on Proposition 8 Campaign, and UC Berkeley Law Professor Emeritus Stephen Barnett. Rojas presents their view that the Prop. 8 litigtation concerns same-sex marriage, or a right to same-sex marriage, rather than equal protection of the right to marriage. Analogy to Mulkey fails because, according to Pugno, the U.S. Constitution lacks a right to same-sex marriage, or, per Barnett, the federal government does not recognize same-sex marriage.

But Mulkey and the Prop. 8 litigation sustain a compelling analogy: both involve core constitutional questions of equal protection. Petitioners in the Prop. 8 litigation contend that by violating the equal protection clause of the California Constitution [Cal. Const. Art. I, Sec. 7(a)], Prop. 8 changes the fundamental plan and democratic ordering of California's government, and thus represents an unconstitutional revision. California Attorney General Thomas Lynch argued in Mulkey that Prop. 14 (1964) represented unconstitutional discrimination by violating the equal protection clause of the U.S. Constitution's 14th Amendment.

Pugno disparages the petitioners for failing to claim violation of the 14th Amendment, asserting that they "do not want to risk losing in federal court because losing there would be a nationwide loss." Has this risk been overstated? UC Hastings Law Professor Brian Gray advances an argument that suggests it has. But Pugno's claim has support from within the marriage equality movement. See, for example, this statement by the National Gay and Lesbian Task Force on whether marriage equality supporters should seek review from the U.S. Supreme Court: "Even the strongest gay rights case the Court has decided—the Lawrence case striking down laws against intimacy for gay couples-said it was not going to say anything about formal recognition of same-sex relationships."

This article also has comments by Santa Clara University Law Professor Gerald Uelmen and UC Irvine Law School Dean Erwin Chemerinsky. Uelmen continues to express misgiving about a California Supreme Court ruling that overturns Prop. 8. If the Court agrees that the right of same-sex couples to marry "is so fundamental that to abolish it revises the constitution," Uelmen says, "the [a Court majority] would have to admit they revised the constitution in the first place." But Chemerinsky disagrees: ""If [the Court] concludes, as I believe it should, that this is a revision, then it is unconstitutional," Chemerinsky said. "The whole point of a constitution is to limit what the majority can do."