Cal. L. Rev.: In Re Marriage Cases

Professor William Eskridge contributes "The Marriage Cases—Reversing the Burden of Inertia in a Pluralist Constitutional Democracy," which analyzes the In re Marriage Cases decision through the lenses of "equality jurisprudence" (by which courts minimize turmoil from power shifts among consituencies) and offers a check on the potentially damaging fallout of "hyperamendability" (i.e., Californians' power to amend our constitution by simply majority):

"The California Supreme Court has replaced the New York Court of Appeals, the federal Court of Appeals for the Second Circuit, and the U.S. Supreme Court as the court at the cutting edge of many issues in American public law. The process of displacement probably began long ago, perhaps as early as 1948, when the California Supreme Court’s decision in Perez v. Sharp became the first appellate decision to recognize that state bars to interracial marriage are unconstitutional. That landmark decision has been followed by a steady stream of others. The latest such decision is In re Marriage Cases, in which a closely divided (4-3) court held that the State’s exclusion of same-sex couples from civil marriage violated the state constitution’s equal protection guarantee."