Exactly. Having two groups of people who are situationally identical, yet treated differently under the law is a clear violation of the equal protection clauses of the US Constitution.
IMO, this was a cowardly decision my the CA SC justices. They chose not to invoke the wrath of a sizable chunk of citizens by overturning the prop itself...yet they deliberately left this doorway to a federal appeal wide open. Any first-year con-law student could argue the basis for the appeal.
Or was it ...
By which I mean -
assuming in such an appeal the Federal Supreme Court overruled the Calfornia SC ruling - on the basis that it's unconstitutional, which, on its face, it
is, and so it must
.
Wouldn't that constitute a
de facto Federal ruling that; ifexisting same sex marriage partners
are entitled to equal protection under the clause, that a same sex marriage should therefore be afforded
equal status under the law as a mixed sex marriage. By extension, any refusal by individual States to allow or recognise same sex marriage is equally unconstitutional?
The only real alternative would be to anull the 18,000 extant marriages and that hardly seems likely.
I imagine an argument could be made for State's rights being infringed, but ... in that sense, while it may not
force state legislatures to follow, it would surely put even more pressure on them to do so. The wide majority makes me wonder if this wasn't perhaps the intention all along.