Home » Politically Aware, Top Highlights » Just where is the Prop. 8 case?

Just where is the Prop. 8 case?

Commentary: Politically Aware

While legal scholars continue to argue about whether the Supreme Court decision to uphold the Affordable Care Act (ACA) simultaneously gutted the Commerce Clause, we can turn what’s left of our tolerance for mind-numbing legal analysis back to Perry v. Schwarzenegger, the federal court challenge to Proposition 8.

To recap, Proposition 8 is the 2008 referendum that defined marriage as between one man and one woman in the California Constitution. It is currently unconstitutional based on the decision of a three judge panel of the Ninth Circuit Court of Appeals upholding District Judge Vaughn Walker’s decision invalidating it. The proponents of Prop. 8 requested an “en banc” hearing by a larger panel of justices, which the Ninth Circuit declined, but stayed their decision 90 days for possible appeal to the Supreme Court.

More than 50 days have passed with no overt action. They may just be drafting and editing briefs. They may also be arguing whether to risk appeal at all, given the inherent risks and limited upsides.

The proponents dream scenario is that the Supreme Court upholds Proposition 8 in a way that tells the entire country that marriage is only between a man and a woman. This seems like a stretch, particularly in light of Justice John Robert’s ACA opinion that took clear shots at what the federal government can force states to do. Justice Anthony Kennedy went even further, refusing to find any way to validate Obamacare. Given the centuries of precedent for letting states decide who they will marry, Kennedy and Roberts seem more likely to overturn the Defense of Marriage Act than to expand Proposition 8.

The next best thing for the “traditional marriage” crowd would be a finding that the constitutional promises of equal protection and due process don’t demand marriage equality. Same-sex marriage becomes illegal in California for the time it takes to overturn it at the ballot box, and other states keep the status quo of working through their constitutions and legislatures. Though it’s certainly a sad day for LGBT Americans, a brief return to the status quo isn’t much of a victory given the risks.

Those risks include a limited or sweeping victory for marriage equality. The limited victory is probably the most likely outcome: Kennedy joins the liberal block in upholding the Ninth Circuit’s narrow opinion, restarting same-sex marriages in California, and possibly in a few other states where marriage laws were passed and overturned, or where “everything but marriage” civil union laws exist. The newly legacy-minded chief justice might even join the opinion to put his court tepidly on the right side of history.

The limited decision seems most likely because Judge Stephen Reinhardt basically gift wrapped his Ninth Circuit opinion in Kennedy’s Romer v. Evans and Lawrence v. Texas decisions, sticking on it a little note that said “I just did what you told us.” But the door is also open for the court to strike down all same-sex marriage bans. If Romer and Lawrence represent a compromised form of Kennedy’s support of freedom, not it’s limit, he might lead the court right through that door. Even Justice Antonin Scalia, in dissent, admits that marriage equality is a natural consequence of Lawrence.

If the proponents do choose to appeal, the justices will do a similar risk analysis. Four judges have to vote to hear a case. If Kennedy doesn’t tip his hand, why would the four conservatives risk invalidating same-sex marriage bans? Why would four liberals risk re-instating Prop. 8? For a body that prefers narrow, incremental decisions, letting the Ninth Circuit legalize same-sex marriage in California seems fairly risk-free. Lest we forget, the universe did survive 5 months of California marriage equality.

For the Prop. 8 proponents and his colleagues on the court, it all seems to come down to “What would Kennedy do?” And it well might. Or not. As the ACA case showed, predicting what Kennedy will do is a dangerous game.

July 31, update: The anti-marriage proponents of Prop. 8 just filed their petition asking the U.S. Supreme Court to hear our case. Both the Federal District Court and the Ninth Circuit Court of Appeals said, unequivocally, that Prop. 8 serves no purpose other than to single out gay and lesbian Californians for discriminatory treatment. Prop. 8, and laws like it, cannot stand. Help AFER defend the two decisions that ruled Prop. 8 unconstitutional. Make a donation today.



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Posted by LGBT Weekly on Jul 26, 2012. Filed under Politically Aware, Top Highlights. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

13 Comments for “Just where is the Prop. 8 case?”

  1. The vast majority of Americans, for religious or culture reasons believe marriage is between a women and man. At the same time they support equal rights for all and separation of church and state. What we need is for states to require “civil unions” for all couples with the same rights for everyone. If desired, couples could get married in a church or community of receptive believers, but it has no meaning except to the couples. If we had done this 5-10 years ago, just think of the money in legal action we would have saved, and most if not all same sex couples would be married.
    My guess as to why this has not happened is the Gay community wants to force cultural change on the majority.

    • I’m sorry, Terry, but that’s not acceptable. I am married. I’m not “civil unioned” or something else. And I don’t care how that affects you. All men are created equal, remember? You don’t get to marginalize other people because you don’t fully understand them or because “that’s how it’s been.” My rights are inalienable, just like yours.

      If I called your marriage a civil union, you’d be offended. So would I.

      So if you had done that 5-10 years ago, we’d still be fighting for marriage equality. There is no compromising my freedom.

      • If you are with a man you are not married. Marriage is between one man and one woman. You are free to call yourself and think of yourself as married, but to me, and more importantly to God, you are just fornicating.

        • Marriage is a union of two people, doesn’t matter what their race or sexual orientation, all people should be able to enjoy all the benefits of marriage that our government bestows, including Federal and State. Besides, what’s your problem with fornication? It’s a great activity. Don’t be so uptight, live and let live.

    • This “vast majority” you speak of doesn’t exist, not anymore. In fact, the most recent polls show that those people are actually in minority now. The cultural change is happening, and legislation will eventually catch up.

    • Bravo!

      I’d call it “registered union”, though, because “civil union” has so many negative connotations. RU would have one very positive aspect: it suggests that it’s the people who decide, and the government merely acknowledges it.

  2. “My guess as to why this has not happened is the Gay community wants to force cultural change on the majority.” And you would be wrong. I used to think similarly, that perhaps accepting “civil unions” would expand necessary rights without triggering the wingnuts and their precious concept of “marriage”. But that is just accommodationist pandering. Why should the bigots be the ones who decide whether or not the relationship that two people who love each other have is going to be legally recognized? Beside the wingnuts have fought just as hard against civil unions, They are still looking for a way to overturn Lawrence v Texas. Besides the main point is still whether or not marriage equality (whatever you call it) is going to be recognized federally.

  3. [...] Authored By Joel Trambley – See the Full Story at LGBT Weekly [...]

  4. Its a nail biter for sure. If you want a good review of the juicy parts of the case come to a San Diego presentation of Dustin Lance Black’s “8″ at the Looking Glass Theater, Sat July 28th at 730pm. Details at http://www.LookingGlassSD.org or on facebook – https://www.facebook.com/events/334742706604363/

  5. I agree that Civil Unions are the key. However to think that the entire Gay Community wants to “force cultural changes on the majority” is simply not true. I believe that the straight community also has a keen interest in not changing Marriage to Civil Unions. They don’t want marriage messed with in any form. It is a tradition.The majority is tilting in the direction approving of same sex marriage so that argument is getting weak. You could also say that a woman’s right to vote was also a force of cultural change as well as mixed marriages…slavery and on and on. Equal rights always eventually rise to the top after long hard battles. Marriage Equality is no exception.

  6. I long for the return of “traditional marriage”. My place is such a mess, I need the full complement of 5 wives (Abraham had from 2 to 5 wives, Joshua had 2) to clean the place and cook. And you can bet that anytime I can purchase a 12 y/o virgin for 3 cows, I’ll snap right to it! Please, do not redefine “traditional marriage”………again!

  7. There’s no such thing as “traditional” marriage. Sure there’s Christian marriage which includes incest, polygamy, death and rape. As for traditional as a whole, it has to be determined which culture, era, tribe, country, empire, island etc etc you’re talking about.

    As for same-sex marriage, it has existed just as long as opposite-sex marriage has. Christians seem to think they own/created marriage, this is false. They do not and will never. Marriage existed long before the Christian religion was ever created.

  8. @Terry Higgins

    53% of the Americans(majority) support same-sex marriage and 77% of adults 18-30 also do.

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