'Activist Courts,' Misleading Wedge Politics and the Tragedy of Proposition 8

14 Pages Posted: 10 Apr 2009 Last revised: 20 Apr 2010

See all articles by M. Katherine B. Darmer

M. Katherine B. Darmer

Chapman University, The Dale E. Fowler School of Law

Date Written: April 9, 2009

Abstract

This paper explains that Proposition 8 was uniquely devastating in that it stripped vested marriage rights away from a protected minoirty group. Previously, where voters sought to define marriage narrowly to exlude gay and lesbian couples, voters did so in advance of gay and lesbian couples having such rights. The paper defends the California Supreme Court's decision in the May 15, 2008 "Marriage Cases," criticizes misleading advertising ploys of the Proposition 8 campaign and broadly defends the role of the courts in ensuring equal protection, drawing parallels between the current fight for marriage equality and earlier fights for the rights of interracial couples.

Keywords: Proposition 8, marriage equality, GLBT rights, LGBT rights, equal protection, interracial marriage

JEL Classification: K19, K30

Suggested Citation

Darmer, M. Katherine B., 'Activist Courts,' Misleading Wedge Politics and the Tragedy of Proposition 8 (April 9, 2009). Chapman University Law Research Paper No. 09-19, Available at SSRN: https://ssrn.com/abstract=1375638 or http://dx.doi.org/10.2139/ssrn.1375638

M. Katherine B. Darmer (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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