My question is why no one seems to ever bring up REITMAN v. MULKEY. This is a case where Proposition 14 was approved as an amendment to the California constitution by 65% of the electorate in the early 1960′s. The California Supreme Court invalidated the amendment on equal protection grounds. The amendment was designed to overturn fair housing laws passed in the California legislature which made it illegal to discriminate in sale or leasing of housing.

The California decision was appealed to the U.S. Supreme Court which upheld the California court’s decision. Some have made the argument to me that the only reason that it could be appealed at the Federal level was because the California court utilized the Federal equal protection clause to arrive at the decision which overturned the California amendment, but I can find no evidence of that.

In fact, California’s equal protection clause directly references the fourteenth amendment to the U.S. constitution, which basically would mean that every equal protection ruling would be based on the fourteenth amendment.

Am I missing something?

Thanks, and here is the case reference:

U.S. Supreme Court
REITMAN v. MULKEY, 387 U.S. 369 (1967)
387 U.S. 369

REITMAN ET AL. v. MULKEY ET AL.
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
No. 483.
Argued March 20-21, 1967.
Decided May 29, 1967.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=387&page=369

If no, then the court must reconcile equal protection with no marriages for same sex couples. They have, in fact, already answered this in the decision of In Re Marriage Cases. The decision actually says that either marriage for all or marriage for none would fulfill the constitutional requirements, but that there is clear that marriage for all is more in line with state policy.

Prop 8 has changed that state policy, explicitly prohibiting the court from requiring marriage for all. Therefore, to reconcile Prop 8 with equal protection, the court would have to order that nobody can have marriage. Whether this would be retro-active would be a complex question, but shouldn’t impact the above reasoning. Also, the public would likely then reverse Prop 8 at the next opportunity, as a way to get the rest of the marriages back.

B. Does ending equal protection revise (as opposed to amend)?

If Yes (it revises), then the initiative does not take effect, and since the legislature won’t pass a ban on same-sex marriages, this is pretty much over.

If No (it amends), then presumably it can be amended back.

1. Does Prop 8 actually repeal some of the extent of equal protection? Or does it stand alongside equal protection?

If court finds that Prop 8 stands alongside equal protection, I think the court will find for no marriage. In the original In Re Marriage Cases decision, the court said that either no marriages or marriage for all would meet the equal protection requirement, but the court choose the former because it was clearly in accordance with present public policy.

2. If the court finds that Prop 8 does repeal some of the extent of equal protection, is that a revision or an amendment?

Note that by the time you reach this decision, you already have accepted that Prop 8 DOES invalidate equal protection, which I think requires the judges to at least take more seriously the argument that this is a revision rather than an amendment.

So for there to be marriage inequality, the Yes on 8 litigants will have to win both arguments- that Prop 8 does modify equal protection, and that modification is an amendment, not a revision.

And a good chunk of our legal code does that too, I’d daresay.