It looks as if overturning the people’s will on Proposition 8 by the California Supreme Court has run into a snag or two, that is if anti Prop. 8 law professor Robert Dekoven is correct.
Commenting in the online mag Gay and Lesbian Times Professor Dekoven made this assessment on chances of Prop 8 being overturned:
“Now that the California Supreme Court has accepted review of Proposition “H8” but refused to stay its enforcement, it’s unlikely to overturn the measure. The court’s action indicates that legal arguments opposing Proposition 8 are weak. Further, we’ve probably lost our most vocal advocate, Justice Joyce Kennard – the only justice who voted not to hear legal challenges against it.”
Dekoven further states:
“The two arguments up for review include: that the measure surpasses the legal scope of a ballot initiative by permitting a majority to limit a minority group’s rights; and that it disturbs the constitutional separation of powers by restricting judicial authority. As for Justice Kennard’s stance, it shows she views the constitutionality of the measure as being so irrefutable it doesn’t merit review.”
So where will anti 8 supporters turn next? Professor Dekoven suggests justifying gay marriage on the grounds of how children will be effected:
“Consequently, at both the state and federal level we need to leverage an additional argument to support same-sex marriage: We need to emphasize the effect that prohibiting it would have on the children same-sex couples adopt. It’s an argument we haven’t used yet and one that if we don’t will guarantee we lose…”