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Originally Posted by dksuddeth
which precedent? That there is now no 'equal protection' for the numerous other gay couples that didn't get to marry? or that 18,000 marriages are recognized because they happened to slide in before the lock? I see a 14th Amendment challenge coming.
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Laws have never been applied retroactively unless they were stated to be applied retroactively beforehand. Prop 8 never stated this, in part because it was drafted before any same-sex marriages had been performed. As a result, the courts simply decided that Prop 8 couldn't be used to invalidate every same-sex marriage performed in California-- Just those occurring after Prop 8 was passed.
But, like I said, good luck with the 14th Amendment challenge. I don't see that going very far, especially with DOMA in the way. And then there's the fact that Alito, Scalia, Roberts and Thomas will almost certainly vote against any such arguments brought forth by gay rights advocates, which would mean that gay rights advocates would have to get the other five justices to vote in their favor. They'd most likely get Ginsberg, Stevens and Breyer. I don't know anything about the new lady, so I can't comment. I don't see Kennedy siding with the more liberal wing, as while he's generally supportive of gay rights, he's always stopped short of insinuating that the government should have to legally recognize any relationship that gays enter into. So, at best, I'd see a 5 - 4 split against gay advocates, at worst a 6 - 3 split.
I'm pretty sure gay rights advocates know this, so they won't try to press the issue in a Federal court. Sure, they could win, but they probably wouldn't and losing there would be a major blow to their cause.