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California Supreme Court to Decide Constitutionality of Prop 8

Rick Hasen reports on his election law blog that the California high court agreed Wednesday to consider whether Proposition 8 passes muster under the state constitution, which could put to rest at least part of the controversy that’s been brewing since Californians voted to amend their constitution to prohibit gay marriage.

The court intends to rule only on whether the proposition violates California law, however, not on whether it violates the federal Constitution, which could easily leave the state open to future legal battles.

Recall that, as Hastings Law Professor Brian Gray pointed out this week in an op-ed in The Los Angeles Times, in 1996 the U.S. Supreme Court ruled unconstitutional a Colorado proposition that amended its constitution to prohibit laws protecting gay rights. The court found that Proposition 2 violated the equal protection clause of the 14th Amendment. Though there are differences between Colorado’s prop 2 and California’s prop 8, the potential federal constitutional challenge is clear.

In the meantime, the California Supreme Court has refused to delay implementation of Proposition 8 until its decision is rendered. As Hasen notes, that doesn’t bode well for opponents of the law. But you never can tell.

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