Marriage in California: Is the Federal Lawsuit Against Proposition 8 About Applying the Fourteenth Amendment or Preserving Federalism?

Abstract

This article will argue that existing precedent does not support a finding that Proposition 8 violates the U.S. Constitution on either equal protection or due process grounds. In fact, existing precedent in Washington v. Glucksberg actually supports the opposite conclusion. Part II of this article discusses the history of marriage and its civil recognition in this country, and the development of federalist principles in the area of family law. Part III of this article discusses the current state of marriage and the gradual decline of federalism as an affirmative limit on the federal government's power in the area of family law. Part IV of this article analyzes some of the current precedent from the U.S. Supreme Court on issues of equal protection and due process, and argues that much of this precedent, except Glucksberg, is distinguishable with respect to Proposition 8.1 Part V of this article addresses the legal implications for this country's federalist system of government if the federal court system decides to strike down Proposition 8 as unconstitutional. Finally, Part VI provides a conclusion on the constitutionality of Proposition 8 and argues that federalism in the regulation of family law, including the definition of marriage, should be preserved.