Partial Victory in Prop 8 and DOMA – Early Analysis


My predictions have turned out to be correct — gay marriage will now be federally recognized and legal in California, but not universally legalized.

DOMA IS UNCONSTITUTIONAL at least partly thanks to equal protection and not just states rights, that’s a big victory.  The opinion is here.  This is huge news for immigration and taxes and other federal jurisdiction issues.

“There is a “careful consideration” standard: In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles.”

Also this: “Bottom of 25-26: The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others. ”

This means that there’s some sort of heightened scrutiny now applied to gays as a class, though it does not appear to be full strict scrutiny.  This is good for any future gay marriage cases that are less complicated than Prop 8.


The opinion is here.  What this basically means is that the lower court decision stands and Prop 8 is legalized in California, but not elsewhere.  The majority on this case is the weird combo of Roberts with Scalia, Ginsburg, Breyer, and Kagan.  I’m guessing this means that there was a lot of negotiation behind the scenes?

I believe that this mean Judge Vaughn Walker’s amazing opinion stands, but only as it applies to California.  It’s one of the most beautifully written things I’ve ever read, so I highly recommend it.


I stayed up far too late last night watching the drama unfold in the Texas senate, where Wendy Davis and several other amazing people fought for women’s rights and the GOP there tried to cheat and swindle their way to a victory, only to be stopped by the raucous crowd.  It was truly amazing.

But it was back to watching a livefeed only a few hours later — this time SCOTUSBlog in hopes of a victory in DOMA and Prop 8.  Man the internet is necessary for news these days.

Infographic here helps explain possibilities.  This is my previous analysis of possibilities.

It has been a long journey with Prop 8 — over 5 years.  I wish it had been a more robust victory, and it’s a shame it happened on the same day as DOMA.  Still, the percentage of Americans who have access to gay marriage has just grown tremendously by the inclusion of California.  That can only be good news.

Partial Victory in Prop 8 and DOMA – Early Analysis

6 thoughts on “Partial Victory in Prop 8 and DOMA – Early Analysis

  1. 1

    Unfortunately, many commentors on the legal scene have opined that the fight in California is not over yet. They say that there is a question as to whether the District Court’s decision applies statewide, only to the Federal District that Walker was a member of, or only to the plaintiffs in the action. More work for the lawyers.

  2. 2

    If California has 1/8 of your total US population, and gay marriage is legal there, and DOMA is dead… bans on gay marriage at any level aren’t going to stand for very much longer.

  3. 3

    To be clear: the only part of DOMA that was declared unconstitutional was Section 3, which denied federal benefits to legally married same-sex couples. Section 2, which allows states to refuse recognition to legally married couples, remains in force, and the question of whether or not state bans on same-sex marriage are constitutional remains unaddressed. The Court could not rule on either of these issues, as they were never raised at the original trials.

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