Comments on: Prop 8 Lawsuit Q&A: Is the Prop. 8 Lawsuit Like Romer v. Evans?

By: Willy

Willy — Tue, 23 Dec 2008 22:19:37 +0000

I think what SilverFox was asking was whether the Strauss lawyers can rely on the Romer case as precedent. I think it would just be persuasive, so the court wouldn’t have to follow it if it chose not to. But similarly, I had thought that the CA Supreme Court used Loving in their opinion, which I think was a federal case. Based on that, I think the court may use Romer if there are no other CA cases on point.

By: Johnny California

Johnny California — Sat, 15 Nov 2008 04:58:47 +0000

The Strauss Petition certainly relies on California law as well, as we pointed out (not all that clearly), Romer is only used to support the larger arguments, most of which rely predominantly California law and California constitution. As for evading the U.S. Supreme Court by relying on state law, no such luck. If this case ever got to the USSC, the argument would be 14A, which applies the principles of equal protection to the states. Simply put: State laws are reviewable by the federal court under the 14A. We think that answers your question as simply as possible, if not, fire away and we'll try again!

By: SilverFox

SilverFox — Thu, 13 Nov 2008 00:22:06 +0000

If the eventual Strauss/Prop 8 decision is based solely on Cal. case law interpreting its own Cal. constitution, not any federal constitutional case law such as Romer, is the U.S. Supreme Court thereby precluded from reviewing the Strauss decision? Is that an important distinction between Romer and In Re: Marriage Cases, which overturned Prop. 22? Didn't the Colorado Supreme Court in Romer rely on the U.S. 14th Amendment equal protection clause and U.S. Supreme Court decisions interpreting it, not the Colorado Constitution and cases, which thereby gave the U.S. Supreme Court the right of judicial review to decide Romer? In contrast, didn't the Cal. Supreme Court in In Re: Marriage Cases rely solely on the Cal. Constitution and Cal. cases, and would that have precluded review by the U.S. Supreme Court in the event proponents of Prop. 22 had been interested in trying to take it there? If so, wouldn't the better tactic for the Strauss petitioners have been to urge the Cal. Supreme Court to rely only on Cal. case law, not on Romer? Isn't it wise to try to prevent review by the current U.S. Supreme Court?