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View Diary: What Minnesota's refusal to ban same-sex marriage tells us about the chances they'll legalize it (79 comments)

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  •  Repeal (6+ / 0-)

    Once it's passed, a repeal would have the effect of removing a Constitutional right from a minority group. It's likely that the California case before SCOTUS will turn on this. In the eyes of the courts, state action to deprive someone of an existing right is far different than a refusal to recognize the right to begin with.

    •  Agreed. (3+ / 0-)
      Recommended by:
      ER Doc, MichaelNY, sfbob

      This is why the possible outcome of Hollingsworth that's been called "California only" would (a) NOT actually be California only and (b) be a fairly positive thing.

      •  Hollingsworth could ideally create all sorts of (2+ / 0-)
        Recommended by:
        MichaelNY, Christopher Walker

        precedent. The "if you give gay and lesbian couples all of the rights and responsibilities of marriage and treat them the same as heterosexual couples for all legal purposes then there is no possible valid excuse for not allowing them to use the word marriage" argument could readily be used to force states such as Delaware, Rhode Island and Hawaii, which already do that to grant full marriage equality which is why the DOJ's brief in the case is often referred to as the "eight state strategy" (it could affect eight states including CA).

        In addition there is the "there may not be a Constitutional right to same-sex marriage but once that right has been granted you need a really compelling reason for taking that right away away" argument. This is one that seems to go right over the heads of many of the folks on the "wrong" side of Prop 8. What possible reason could there be for changing California's constitution to void marriage equality when the state supreme court has previously ruled that it's required. This outcome was likely on the minds of legislators in New Hampshire when they were contemplating repealing that state's marriage equality law and decided not  to bother. They'd likely have been taken to court and have lost there.

        I'm reasonably certain that the Supreme court will give a favorable ruling on Hollingsworth. I'm nearly as certain that they will attempt to craft the narrowest ruling they possibly can but there can be little doubt that the best they can hope to accomplish is to manage the speed at which marriage equality ultimately triumphs.

        •  Agreed. (2+ / 0-)
          Recommended by:
          sfbob, Smoh

          I'm right with you. This:

          In addition there is the "there may not be a Constitutional right to same-sex marriage but once that right has been granted you need a really compelling reason for taking that right away away" argument.
          ...is what I was calling the "'California only' outcome." So-called because some folks (who aren't thinking very clearly) have declared that such a ruling would only matter for California, the only state in which a vested gay-marriage right has been taken away.

          To the contrary, it would matter enormously in a whole bunch of other states—Iowa most prominently, with all of the other marriage-equality states right behind.

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