A 14th Amendment challenge if California Supreme Court upholds Prop. 8 and existing same-sex marriages?

03/07/09 AP (posted to Sacramento Bee):

David Cruz is a constitutional law professor at the University of Southern California. If the California Supreme Court rules in the way many expect, he thinks that the ruling would be opening to challenge under the equal protection clause of the 14th Amendment.

"Having some gay couples allowed to stay married while others are prohibited from saying 'I do' would provide legally plausible, if politically debatable, grounds for an appeal under the equal protection clause of the U.S. Constitution, according to Cruz.

" 'If they say Proposition 8 is valid but it doesn't touch existing marriages, what that raises is the fact that there are now these two groups of couples who are treated differently under the law for no functional reason,' he said."

Tobias Wolff, a University of Pennsylvania constitutional law professor, anticipates significant burdens on married same-sex couples if the Court sustains the validity of their marriages. Jon Davidson, legal director of Lambda Legal, has already referred to this form of unequal burden that such couples can be expected to bear.

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