Marriage equality for all
September 14th, 2010 at 11:07 pm (Law, Society)
Where does California’s Proposition 8 stand today?
This is the proposition which in late 2008 amended the state constitution to assert that “only marriage between a man and a woman is valid or recognized in California.” Today I was lucky enough to attend a talk by James Gilliam, the Deputy Executive Director for ACLU of Southern California. He gave a lucid, fascinating, and inspiring account of the history and current situation.
California is unique because it is the only state in which same-sex couples *did* have the right to marry (albeit briefly) before it was taken away. The question now is whether voters legally have the ability to take away that right, once established.
Last month, Judge Vaughn R. Walker issued a ruling that Proposition 8 violates the U.S. Constitution’s 14th amendment (equal protection) and therefore cannot stand. The ruling makes for some fascinating reading — it’s not as dry as you think it is. Effectively, the ruling says that the state of California has no interest (compelling need) to discriminate between same-sex and opposite-sex marriages, that Proposition 8 ultimately arises from a desire to impose one group’s moral view on another (which is not what laws are for), and that strict scrutiny (the highest level of skepticism) should be applied to any proposed law that would discriminate on the basis of sexual orientation.
From the ruling:
“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”
This is just one of the many justifications that Judge Walker provided for his decision. In contrast, Prop 8 proponents have argued that it doesn’t infringe on any rights because gays can still legally marry… they just have to marry someone of the opposite sex. Sophistry at its best!
Proponents of Prop 8 have filed an appeal with the 9th Circuit Court. It turns out that in an appeal, the superior court does not review the facts and testimony to reach an independent decision; instead, the court focuses solely on whether the preceding judge misapplied the law. Another interesting aspect of this appeal is that it may not actually happen, because there may not be anyone with proper legal standing to bring the appeal. “Standing” is given only to those who are named in the original suit, with some exceptions. The defendants of Prop 8 named in the suit include Governor Schwarzenegger and Attorney General Brown, both of whom have publicly stated that they want Prop 8 to go away, and that they refuse to take on the appeal. (They are automatically named as defendants because in their positions they are charged with enforcement of the laws.) The Prop 8 folks who defended it before Judge Walker are permitted to bring the original suit, but likely not to appeal, because they are not named (they stepped in to represent that side because the government declined) and they have experienced no “impairment” caused by Judge Walker’s decision. We’ll find out in December whether the 9th Circuit Court thinks there’s anyone with standing who’s willing to argue for Prop 8. If not, Judge Walker’s decision will remain as is.
Of course, this doesn’t mean the issue will go away. California’s proposition system permits its voters to keep putting the same issue on the ballot, year after year. So even though Prop 8 has been declared unconstitutional, someone can write “Prop 8.1”, get enough signatures, and put it back on the ballot to revise the constitution all over again. If it passes, I guess that means it has to cycle through the courts again. I’m just appalled at this wasteful nonsense, and I hope that in reality this wouldn’t actually be permitted. Surely there’s some additional check against abuse of the proposition system? Please save California from itself!
Susan said,
September 15, 2010 at 8:48 am
I’m very interested in this issue of the appeal possibly being rejected because the defendants have no standing. From your description here, it seems more logical for this to happen than I thought.
However, it’s my understanding that this will almost definitely be appealed to the US Supreme Court. I’m pretty sure that can happen even if the appeals court rejects the standing of the defendants, though it gives the Supreme Court a good reason not to hear the case.
wkiri said,
September 15, 2010 at 9:37 am
Yes, the lawyer giving this talk seemed pretty convinced that it will go to the Supreme Court, so you could be right that it can bypass the Circuit Court if there’s no standing (any lawyer friends reading this who can comment?). He also gave his prediction for the SC outcome: 5-4 in favor of striking down Prop 8. However, the earliest it would get there would be sometime in 2012 (by which point the world’s going to end anyway, right? :) ).
Scott said,
September 16, 2010 at 9:56 am
That’s awesome and interesting news. Hopefully we can keep moving away from codifying bigotry into our laws (I know, I’m a dreamer)
David B. Cruz said,
September 16, 2010 at 6:32 pm
I have blogged about the “standing to appeal” issue at cruzlines.org
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.
Robert Link said,
September 16, 2010 at 7:43 pm
@wkiri: I have not been able to determine if you are one of the folks I was lucky enough to meet at the forum, but I certainly want to thank you for attending and for talking it up here at your blog. (I am the bald dude who was passing the microphone around the room for questions.)
@Susan: Technically, the defendants in the case were not the folks who bankrolled the Prop. 8 campaign, which is an important point. The defendants were all government officials, and the most important two of those officials, Governor Scharzenegger and Attorney General Brown, declined to even defend the case. The folks who bankrolled Prop. 8 came in as intervenors. Typically intervenors are not considered to have standing for an appeal.
@wkiri: When Mr. Gilliam spoke of the Supreme Court, I don’t know that he meant this case specifically would go that far. I think the idea was that regardless whether or not the 9th Circuit finds there is an appellant with standing, eventually the issue of marriage equality will reach the Supreme Court.
@Scott: Word!
@Professor Cruz: Could you be persuaded to cut-and-paste a url or even a snippet of the relevant post? I am sure I am not the only one who would be grateful. Our speaker, Mr. Gilliam, teaches at Loyola Law, and jested that the presentation would be fairly straighforward for him as he had taught the same material to his Loyola students one day earlier.
wkiri said,
September 17, 2010 at 10:08 am
Thanks for all of the great comments!
Here is the link to Prof. Cruz’s post about “standing to appeal”, which provides a fascinating analysis of the issue and cites relevant prior cases for context.