A few weeks ago I was attending a memorial day party where there were a number of older gay men. While they discussed the issue of Prop 8, they truly knew nothing about the case. I did not correct them, but it made it abundantly clear that even supporters are tragically misinformed on the issue and what legal battles have been raging. Hopefully this blog post will clear up the issue for everyone who reads it.
BACKGROUND
The battle for same -sex marriage rights began in the mid 1990s with DOMA. For the most part the Republicans used the issue to their political advantage, accusing liberals (who probably hadn't even thought of the idea) of conspiring to legalize gay marriages. It was a classic Gingrich era straw man and it worked perfectly. Bush II used it in both his 2000 and 2004 campaigns. Everything was going splendidly until February 2004, where our story begins.
PROPOSITION 8
Marriage proponents then took their case to the Federal Courts, arguing that the State Constitution was in violation of the 14th Amendment of the Federal Constitution (the only law higher than a State Constitution). The case made national headlines when the (heavyweight?) lawyers from Bush v. Gore joined forces to take the case through the federal system. The Perry v. Schwarzenegger case was heard by then Chief Judge Vaughn Walker. In his decision he found that the law violated both the Due Process and Equal Protection clauses of the 14th Amendment. What was particularly interesting is that he based in analysis on rational basis review (not the more stringent "strict scrutiny" review). In the District Court's view, there wasn't even a rational basis to support the law.
TWO TRACKS
This is where the issue gets a little more complicated than the average observer might want to figure out, so I'll do my best to make it simple.
1. Motion to Vacate
Yesterday (June 14, 2011), the new Chief Judge James Ware DENIED the motion to vacate. The judge had choice words for Prop 8 supporters:
(Quote is Compliments of the Rachel Maddow Show Blog)
And so this track has come to an end, and the Walker decision remains binding and good law. Prop 8 is no longer valid in the Northern District of California.
2. Appeal
The wrinkle is that Prop 8 supporters, then filed an appeal in the 9th Circuit (the Federal Court above the Northern District of CA) without the government. The 9th Circuit heard arguments on the case, but then bumped the case BACK to the California Supreme Court seeking guidance on whether the Prop 8 supporters can actually appeal instead of their government (this issue of whether a person can sue is called "standing"). The 9th Circuit was curious whether CA state law allowed citizens to sue to enforce state laws. Surprisingly, not every state allows this practice, instead saying only the government itself has standing to enforce laws. The Supreme Court agreed to take the case from the 9th Circuit, but a hearing isn't expected until September 2011, and a decision probably won't come until December 2011.
Even if the case goes forward, the Appeals Panel is expected to uphold Walker's decision. The panel consists of one die-hard liberal, one liberal, and one conservative. We can assume the decision will certainly be 2-1, and almost certainly upholding the Walker decision.
A SUPREME DECISION?
Unlikely. There are a number of reasons why the Supreme Court probably will NOT take an appeal from the 9th Circuit's decision. First of all, the 9th will be the only Circuit to deal with this issue. Other Circuits have addressed the issue of Marriage, but this is the only instance in which a Constitutional Amendment is being challenged. In other instances it was state or federal law that was being challenged. Without a "circuit split" on the issue, it is not likely that the Supreme Court will take up the issue.
The Supreme Court justices are also unlikely to tackle the issue because of Justice Kennedy's notorious unpredictability on issues like this (his was a surprise defection from the conservative block in the Lawrence decision). Neither the 4 conservatives nor the 4 liberals are likely to rely on him when it comes to this issue so there probably isn't much of a push to grant cert on this issue.
There is also the issue that Justices are VERY hesitent these days to take up highly contentious social issues because of what happened following Roe v. Wade. Even justice Ginsburg, notorious feminist as she is, has said that cases like Roe should not be taken by the court. It just causes to many issues when the court tries to settle matters like this, and the court's legitimacy suffers in the process.
In the immortal words of Peter Griffin: "And now we play the waiting game."
Common Sense
