First of all, I agree with you that prop8 should never have passed. I am a California resident an I voted against it. Also, this is my first post here so try not to be to rough on me.
On the surface it seems that the Loving case would give adequate precedent for the quick overturn of this amendment. There are a couple of problems with that thought however. The loving case was decided under the strict scrutiny doctrine because African Americans are considered a “suspect class” group of people. In order to qualify as such a group must meet all of the following characteristics (from wikipedia)
1. The groups' characteristics are immutable. (Race, national origin)
2. The group shares a history of discrimination.
3. The group is politically impotent.
4. The group is a discrete and insular minority. (see U.S. v. Carolene Products)
I believe that the justices will clearly uphold that homosexuals meet conditions 2 and 4. Condition 1 is widely accepted as true, but can be argued. Immutability is a relatively high standard to meet. According to
Immutable Definition & Meaning - Merriam-Webster to be immutable is to be “not capable of or susceptible to change”. Lawyers for 8 will bring up cases of people who have “changed” their sexuality. Whether or not this is real, or if the people were just confused this brings doubt on the idea that the are not capable of change.
On point 3, the 75 million dollars and huge number of votes obtained by the no on 8 group works against the idea of their political impotency.
If these conditions are not met then the government only needs to pass the rational barrier test to keep the law in place.
The revision vs amendment argument is also interesting but probably can’t stand. California is a weird place and almost anything can be an amendment.
In my opinion those against 8 should focus on getting a new amendment on the ballot striking down 8 and be done with it. I think that such a measure on the midterm general election would have a good chance at passing. I would personally wait 4 years until the next presidential to do it because fewer signatures would be needed, but that’s just me.
thanks
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