What did you guys talk about? Sounds interesting. - Todd Hoff

We have not had the class yet, the first one of the semester is at 1:00. But the class is Constitutional Law and in addition to our prep reading from the casebook (covering the history and organization of the Constitution) the prof sent out the Perry v Swarzenegger opinion (which has a great background on prop 22 and prop 8). - Jess

BUT, the fun comes in when half of us take the CA Constitutional side of the argument, and the other takes on a man who wants to marry multiple wives based on the hypothetical situation that prop8 is squashed. - Jess

If there anything that put the government into the marrying business in the first place? - Todd Hoff

States stick their nose into the marrying business through statutes. But I don't see a better argument than the Federal Constitution's Due Process Clause allowing people to choose who they want to marry as a fundamental right. Of course, that's why the prof threw in the polygamist hypo to create an interesting discussion among a class full of mostly liberal students. - Jess

Polygamy is one of those things most have a visceral negative reaction to, so it's a good political tactic, but it wouldn't seem to have much basis in law. - Todd Hoff

Well I think it's going to come down to the Sup Ct deciding if banning same-sex marriage will support a government interest...and I've never heard an argument that it does. But there may be a good argument that banning people from choosing multiple wives or animals as spouses (the extreme of letting people choose to marry whoever they wish) WILL support a gov interest. I can't wait to hear the prof's spin on it...it's usually much better than anything I can imagine! - Jess

Where does the "government interest" thing come in, I've heard that before, but it seems with enough rationalization anything can be made in the interest. - Todd Hoff

From my limited understanding as a student who has yet to take the full course, there are two types of scrutiny that the Supreme Court uses to decide cases. If the issue is a fundamental right, and the court in Perry v Schwarzenegger decided prop8 is, then the type of scrutiny the Sup Ct uses is Strict Scrutiny. The test to see if an issue can withstand Strict scrutiny is if the State can provide evidence that Prop 8 can support a gov interest. - Jess

Yes, this can be rationalized to death, but any case that gets to court, much less Sup Ct is never going to be black and white. I think the cool thing about the Perry case is that the court, by making marriage a fundamental right, ensured the people cannot vote AWAY that right. - Jess