Ethan Leib, professor at the University of California Hastings College of the Law:
I have to confess that the seeming passage of Prop 8 dampered the election for me. I’m very happy about Obama’s victory but it really is counterbalanced by a fair bit of depression about the fate of Prop 8. California at its worst, alas. I also think there is very little chance that any of the litigation to undo Prop 8 will succeed; indeed, it looks foolish to try to go back to the courts on this one (unless some showing of voter fraud or undercounting can be made, neither of which seems on the table). Until we get another chance to have this battle as a constitutional amendment — or the Supreme Court gets a very different constitution, we’re stuck, I fear.
Lawrence Lessig, Professor of Law at Stanford Law School:
We need to try again. Let us launch, now, a new petition movement. Let us spend a year talking to people who disagree with us. Let us win this battle by persuading the other side. I volunteer to do whatever would help, including traveling to every church or community in this state to make the case for equality. But please, let’s not try to win this battle by summoning the Supremes. Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them.
Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law:
Finally, the effects of Prop 8 on the national movement for same-sex marriage are significant but not devastating. Before Tuesday, court opinions legalizing same-sex marriage in Massachusetts, California, and Connecticut suggested that the right was gaining traction. The passage today of constitutional bans on same-sex marriage not just in California but also in Arizona and Florida provides a counterpoint.
Nonetheless, generational and global trends both ultimately favor full marriage equality in this country. The situation here is similar to the two-steps-forward, one-step-back trajectory that led to the legalization of interracial marriage. To be sure, Prop 8 represents a large step back. But the nation’s march toward marriage equality won’t stop.
Nan Hunter, Professor of Law at Georgetown:
Huge loss - CA Prop 8, ending marriage rights for same-sex couples and repudiating that state’s supreme court decision granting equality, was adopted. Although not all votes are in, the LA Times has just declared Yes on 8 the winner, apparently because the lead is greater than the remaining number of votes to be counted.
Michael Dorf, Professor of Law at Cornell Law School:
Yet if, as many observers think, the California Supreme Court would rule Prop 8 non-retroactive, then California will have the oddity of thousands of marriages that continue to be valid even though condemned by a majority of the state. There might even follow another ballot initiative to clarify that Prop 8 was retroactive. A voter who weakly opposes same-sex marriage might think that the potential issues over retroactivity are too much trouble, and so simply vote against Prop 8 in the hope of being done with the question.
