Professor Soucek Publishes Same-sex Marriage Op-ed in Los Angeles Times
Professor Brian Soucek published an op-ed in the Los Angeles Times arguing that Californians should act now to repeal Proposition 8. The 2008 initiative banned same-sex marriage in California, but was found unconstitutional by a federal district court in 2010 in a ruling that the U.S. Supreme Court upheld in 2013. Yet Proposition 8 remains on the books in California, and could be reinstated if the Supreme Court were to revisit same-sex marriage.
“Laws that are found unconstitutional don’t get erased; they just lose their legal force,” Soucek writes. “So the text of the ban lies in wait, ready to spring back to action if given the chance. The election of Donald Trump might provide that chance.”
The 5-4 majority that supported nationwide legalization of same-sex marriage would remain intact even if president elect Trump fulfills promises to replaces the late Antonin Scalia with an equally conservative justice. But with three other justices now 78 or older, Trump may have the opportunity to appoint “a new conservative majority [that] would have little inclination to respect a right to same-sex marriage that Chief Justice John G. Roberts claims has ‘no basis in the Constitution,’” writes Soucek.
If that happened, and Proposition 8 were reinstated, Californians would probably act to repeal it, but that process could take years, and meanwhile same-sex couples would be denied basic rights. “That is a risk we can avoid by starting the initiative process now,” Soucek writes.
Professor Soucek holds a JD from Yale Law School and a PhD from Columbia University. He has clerked for U.S. District Court Judge Mark. R. Kravitz in Connecticut, and Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. His primary teaching and research interests are antidiscrimination law, civil procedure, constitutional law, and refugee/asylum law.