Federal Court Need Not Issue a Sweeping Opinion in Prop. 8 Case, Issue Brief Author Says

June 2, 2010
The federal court considering a challenge to California's Proposition 8, the anti-marriage equality ballot measure, should and need not issue a sweeping opinion that touches on broader constitutional questions, writes Professor Rebecca L. Brown in a recently published ACS Issue Brief.

Instead, Brown, a constitutional law expert and professor at the University of Southern California, Gould School of Law, says the U.S. District Court for the Northern District of California should fulfill "the best expectations we have of the federal judicial role, to resolve the case on strong, unassailable, time-honored, and yet narrow, grounds. The result would be that same-sex couples in California would benefit from the ruling, because it would be very precisely tailored to the unique facts of the case."

These unique circumstances surrounding the California controversy in Perry v. Schwarzenegger should compel the federal court to leave for other day and other forums broader questions, such as whether the U.S. Constitution "requires states to permit marriage between people of the same sex."

But California's Proposition 8, as already noted by the California Supreme Court, has a stigmatizing effect on gay couples and essentially sets them apart as second class citizens, Brown maintains in her Issues Brief.

Based on established Supreme Court equal protection jurisprudence, the federal court should conclude that the state has arbitrarily carved out a proportion of the population for burdensome treatment, Brown writes.

See Brown's Issues Brief, "The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role," here.

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