TTTBE #21: Early Answer for Patrons (Patreon)

This question -- as many people noticed -- mimicked Proposition 8 in California.  In a pre-Obergefell world in which there is no federal Constitutional right of marriage equality, this question asked us to imagine a state first granting the right of marriage to same-sex couples and then taking that right away via a ballot initiative.

This question tested whether you knew that the standard for depriving someone of a right they have enjoyed at law is different than the standard for determining whether or not to grant that right in the first place.  In the former situation, the due process clause applies because an individual is being deprived of "life, liberty, or property."

The correct answer was therefore "A" -- that there is not a compelling state interest sufficient to justify the deprivation of liberty.  My guess is that this question is sure to be another controversial TTTBE, as any smart people, including lawyers, got this one wrong and picked either "C" or "D" along with Thomas, both of which essentially said that the state's voters are free to take away the right to marriage by ballot.

I will say that I think this question is better analyzed under the Equal Protection Clause, because the real harm is that the ballot initiative would take away a liberty interest from one group of people but not others on the basis of a suspect class (gender).  See, e.g., Perry v. Brown, 671 F. 3d 1052, 1083-84 (9th Cir. 2012).  But -- like many real-world bar exam questions! -- there was no good Equal Protection answer from which to choose, so you had to pick the best from the alternatives.

In the real world, Prop 8 was upheld by the California Supreme Court but (as some of you noted) ultimately struck down by the 9th Circuit.

Thomas is now 11-for-20 (52.6%), breaking his one-question winning streak.

Answer B (that you have a right to privacy to marriage) would be and is true in a post-Obergefell world.

 Stay tuned for another new question when Question #22 drops along with Friday's Epsiode 66!