Supreme Court Case Of Christian Legal Society v. Martinez Already Cited In Case By Plaintiffs Attempting To Overturn Prop 8 In Federal Court

The recent deeply troubling decision by the Supreme Court in Christian Legal Society v. Martinez is already being used in the lawsuit against California's Proposition 8 in which a federal court is soon to rule on whether Proposition 8 violates "equal protection of the laws" demanded by the 14th Amendment to the US Constitution.

As Law.com reports, "Plaintiffs challenging Proposition 8 think they might have found treasure buried deep in Monday's U.S. Supreme Court ruling on the discrimination policy at San Francisco's Hastings College of the Law. Lawyers for same-sex marriage proponents told the judge in the Prop 8 trial Tuesday that the five-justice majority in Christian Legal Society v. Martinez acknowledged that gays are a protected class."

"In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class," wrote Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., a lawyer representing those attempting to overturn Proposition 8, in a letter to Chief Judge Vaughn Walker. The single sentence from Christian Legal Society v. Martinez cited to support their desired outcome was apparently when Justice Ruth Bader Ginsburg wrote for the majority, "Our decisions have declined to distinguish between status and conduct in this context." They are trying to use this sentence to solidify their argument that homosexuality is an immutable characteristic with no relation to behavior as the Supreme Court refused to "distinguish between status and conduct." They think this one line helps bolster their Equal Protection claims as "immutable characteristic" is one of the factors according to Supreme Court precedent for recognizing a class for purposes of that provision of the Constitution. However, the fact that the lawyers turned to this one sentence itself shows how much they must feel their own arguments are strained and that Supreme Court precedent does not back up their claims. This is because that one sentence itself is limited to "this context," and not to the context surrounding Proposition 8 which is quite different.

But even if that one sentence was applicable, it is irrelevant anyway because the issue is simply whether the people of California have the right to maintain what is the traditional definition of marriage, or whether the Equal Protection Clause of the US Constitution demands a fundamental redefinition of the institution. When framed properly in this way, I think the answer should be rather obvious even to the "living constitutionalists," but certainly to all originalists. In fact, as a simple textual matter, marriage as traditionally defined is equally available to all in the State of California (anybody, regardless of race, nationality, creed, religion, and even sexual orientation is allowed to get married to a person of the opposite sex), so it really should not be an Equal Protection case at all. Tweet