A Jurisprudence of Platonic Guardians Thwarted by the People: Proposition 8's Trump of the California Supreme Court’s Decision in In Re Marriage Cases

Austin Lawyers Chapter
Start : Wednesday, July 14, 2010 11:30 AM
End : Wednesday, July 14, 2010 01:00 PM

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Sullivan’s Steakhouse
300 Colorado Street
Austin, TX


  • Stephen Casey, local lawyer local lawyer

Stephen Casey operates a solo legal practice in Austin, Texas. A former clerk for Justice Scott Brister on the Supreme Court of Texas, he holds a J.D. from Regent University School of Law and an M.A. from Regent University School of Divinity. He has served on the Federalist Society's Religious Liberties Practice Group Executive Committee since his days as a law student.

After California voters overwhelmingly passed Proposition 22 in 2000, declaring statutorily that California would not recognize same-sex marriage, the Supreme Court of California, in In re Marriage Cases, struck the new statute down as violating the state constitution.  Going further, In re Marriage Cases held that the state must allow same-sex marriages.  In a strong rebuke to the court, in 2008, California voters passed Proposition 8, the traditional marriage amendment to the California Constitution.  The statutory predecessor to Proposition 8 had not fared so well. In In re Marriage Cases, the court had struck down Proposition 22 as a violation of the substantive fundamental "right to marry" and a violation of the state's equal protection clause.  In 2009, Proposition 8 came before the California Supreme Court and was upheld in Strauss v. Horton.

While proponents of judicial restraint claimed the ultimate outcome as a victory, this chapter in California law is not without its inconsistencies. The court showed a marked change in the terms of the discussion between Propositions 22 and 8, beyond the inherent statutory/constitutional distinctions, respectively. Mr. Casey will address the inconsistencies between how the argument was framed in the Proposition 8 case and in the Proposition 22 case.  He will also discuss reasons why, if the substantive due process and equal protection arguments, ones the court rejected in dealing with homosexual marriage at the statutory level, had been followed, it may have kept the court within its proper role of saying what the law is, not what it should be.

Registration details: Cost is $20 for Federalist Society members, $25 for non-members
1.0 hour of CLE credit pending
R.S.V.P. by Wednesday, July 12, to or (512) 533-0125
If you R.S.V.P. and do not cancel, you may still be charged for your lunch if you do not attend.

We strongly encourage you to pay in advance by mailing your check made out to "The Federalist Society" to Yetter, Warden & Coleman, L.L.P., Attn. Gina Verlander, 221 W. 6th Street, Austin, Texas 78701