Latest Field Poll Shows Prop 8 Trailing

A new Field poll released on Halloween shows likely voters opposing Proposition 8 by 5 percentage points. The poll, taken of 996 randomly selected likely voters surveyed from October 18 to 28 ,shows 49% opposing Prop 8 to 44% supporting it, with 7% reporting undecided. The poll notes that the gap between the two sides is down from a month earlier, when a higher proportion of survey respondents reported opposition to Prop 8. What it doesn't note is that even this narrow lead is a dramatic improvement for the supporters of marriage equality/opponents of Prop 8 compared to the Survey U.S.A. poll taken early this month, which showed Prop 8 actually leading by a large margin. It seems that the No on 8 campaign's tracking polls accurately reported that the ads produced to counter the deceptive ads of the Prop 8 supporters are working.

Senator Feinstein Condemns Proposition 8

"You have lighted the road leading home"

With one week left until election day, Senator Diane Feinstein has released a TV ad for the No on Prop 8 campaign. A YouTube version of the ad can be viewed here. Next week we will learn whether a majority of voters agree with her that Proposition 8 "would be a terrible mistake for California."

Oct. 22 Poll Shows Prop 8 Losing Among Likely Voters

"Don't Stop the Love"

The Public Policy Institute of California (PPIC), a highly regarded polling outfit, just released a new poll on October 22 showing that likely voters oppose Proposition 8 by a margin of 52% to 44%. The PPIC poll is based on telephone interviews conducted October 12-19, and has a margin of error of ± 3%. These numbers, taken after the No on 8 campaign started running its ads, is a reversion to numbers closer to what were seen all summer long, before the Yes on 8 ads started running. The full study can be found here.

Connecticut Constitution Protects Same-Sex Couples' Right to Marry

"Ding dong! the bells are gonna chime"

The Connecticut Supreme Court held today that it violated the equal protection rights of gay and lesbian persons under the Connecticut constitution to deny them the freedom to marry civilly. The Court's opinion in Kerrigan v. Commissioner of Public Health rejected the state's argument that the marriage exclusion was constitutional because Connecticut offers same-sex couples "civil unions" with the same state-controlled legal incidents of marriage. At least when such an exclusion "singles out a group that has historically been the object of scorn, intolerance, ridicule or worse," even "symbolic or intangible" differential treatment is a constitutional harm Connecticut courts may address. And because marriage "is an institution of transcendent historical, cultural and social significance," whereas the new vintage status of civil unions (created by the Connecticut legislature during this lawsuit) most surely is not," the two legal regimes are not equal in a way insulating them from judicial review, the 4-3 majority ruled.

The Connecticut majority held that the marriage exclusion was a "quasi-suspect classification," which means that the state had to produce "an exceedingly persuasive justification" for its discrimination, not one that is barely rational. (This intermediate scrutiny standard is more deferential than the strict scrutiny used by the California Supreme Court in In Re Marriage Cases this past May.) The court rejected the state's claim that promoting uniformity and consistency with other states' and countries' marriage laws was a sufficiently important purpose to satisfy intermediate scrutiny. And it also rejected the argument that preserving the "traditional" definition of marriage as limited to relationships between one man and one woman could justify the statute.

And so the court ordered the case be sent back down to grant the plaintiffs a declaration that the exclusion of same-sex couples from civil marriage violated the Connecticut constitution and an injunction requiring state officials to let them marry.

Now, the question remains whether California will remain with Massachusetts and Connecticut as the only states in the union to allow same-sex couples to marry, or whether the voters will approve Proposition 8 on November 4 and eliminate the right of same-sex couples to marry in California.

Supreme Court Reaffirms Ban on Death Penalty for Child Rape

Military context matters less to constitutionality of state criminal laws

Today the U.S. Supreme Court rejected a petition for rehearing in Kennedy v. Louisiana (blogged here), its decision from June 2008 holding that the death penalty for raping a child is unconstitutional under the Eighth Amendment's ban on cruel and unusual punishments. Reserving the question whether unique considerations might allow the military to impose punishments that would be unconstitutional in the civilian context, the majority's Statement respecting the denial of rehearing reiterated the Court's emphasis on the non-military criminal rape laws of the states and the federal government as reflecting a consensus on the impermissibility of executing someone for a crime (such as raping a child) not resulting in death.