Proposition 8: What matters now?

by Rex Wockner

Various legal documents will be filed and then the federal Proposition 8 case will be argued in the Ninth U.S. Circuit Court of Appeals the week of Dec. 6. And there's little chance California's statewide and local LGBT activists will talk about much else between now and then.
So what's the Prop. 8 chitchat here on the Left Coast? There are several issues:

1. The governor and attorney general and everyone else who was sued in the federal Prop. 8 case have refused to defend Prop. 8 in court. Arnold Schwarzenegger and Jerry Brown say Prop. 8 is unconstitutional, that gay and lesbian couples should be able to marry right now and that there should not have been a stay issued pending appeal.
Because of their refusals, Prop. 8's only defenders are the defendant-intervenors from Protect Marriage, the folks who brought up Prop. 8 in the first place. But in what has emerged as a central question in the case, the defendant-intervenors may not have legal "standing" to function as defendants at the appellate level. Nobody sued these folks in this case, and these folks have nothing to do with defending the state constitution, of which Prop. 8 is a part. That's Brown and Schwarzenegger's job.
The Ninth Circuit has ordered these Prop. 8 proponents to prove they even had standing to file an appeal. There is at least a 50-percent chance they'll be kicked out of the case.

2. Imperial County – a poor, dusty home to about 167,000 people located in the desert between San Diego County and the Arizona border – wants to enter the case as a real defendant. Represented by a Christian legal group, they hope to ensure that the ruling that struck down Prop. 8 really can be appealed. The Ninth Circuit will make that call as well.
Many observers think it's a long shot, but, of course, courts are often unpredictable and the Ninth Circuit might really want to find a way for Prop. 8 proponents to have their appeal of U.S. District Judge Vaughn Walker's Aug. 4 ruling that Prop. 8 violates the U.S. Constitution up, down and sideways.

3. If the Protect Marriage folks are allowed to function as defendants, they may attempt to sidestep Walker's 80-some conclusions from the trial and start from scratch, arguing that gays are hard to define and nobody knows what makes you gay, that morality and religion provide a legally acceptable "rational basis" for governments to discriminate against gays in some ways, that marriage is obviously primarily about making babies the old-fashioned way, and what have you.
It will be up to the Ninth Circuit to decide how much weight Walker's comprehensive findings on All Things Gay carry in an appeal. Legally speaking, those are evidentiary facts.
There's something else that can be brought into a courtroom: legislative facts.
For the sake of simplicity, a legislative fact is something of such general knowledge that it need not be proven, or cannot be proven even though everyone knows it's true. "Love is real" might be an example of a legislative fact.
The Prop. 8 proponents could head down this road in an attempt to restrict marriage to opposite-sex couples, arguing, among other things, that "marriage is between a man and a woman – period." Of course, in the Bible, marriage is sometimes between a man and several women. And starting in 2001 with the Netherlands, 12 countries have decided that marriage also is between a man and a man, and a woman and a woman. One of those countries is the U.S. Same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C.
"Marriage is for procreation" could be another attempted legislative fact, despite the fact that millions of married straight people never have procreated.

4. The mainstream media have outed Judge Walker as gay, though they have presented no evidence and Walker hasn't said anything about his sexual orientation one way or the other. If he's gay, does that increase the validity of his extensive findings on All Things Gay – i.e., he knows what he's talking about – or could it mean he was biased in the case from the get-go? Does it matter if he's gay? Should it matter? Would a straight judge be better-positioned to restrict marriage to straight people? We likely haven't heard the last of the Walker/gay meme.

5. The masterminds of the Prop. 8 federal case, famed lawyers Ted Olson and David Boies, always have indicated they wanted to take the case to the U.S. Supreme Court. Others have suggested that should the U.S. Supreme Court rule in a particular way in the case, same-sex marriage would become legal in all 50 states.
What if no one is found to have standing to appeal the Prop. 8 case to the Ninth Circuit? The case would end there, Walker's ruling would take effect, Prop. 8 would be stricken from the state constitution, and one more U.S. state would have gay marriage: California.
Is that an acceptable ending to this super-high-profile case with superstar attorneys who had grander designs? Most California gay leaders say, "Yes, we'll take it."
Some, however, would certainly see it as a limp ending to a provocative case that was opposed, then grudgingly embraced, by the national gay legal establishment – a case that raised gay hopes high that we could end this whole same-sex-marriage thing in one fell swoop. On the other hand, the case's stopping before it starts at the Ninth Circuit would be a "safe" resolution of the matter. With each appeal, there's always the chance we could lose it all, California included.

The first court filing in the appeal is due Sept. 17.

Topics: News

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