Anyone still reading this blog after a summer of very few posts from me knows that I followed the Prop 8 trial in California rather closely. As a gay man I’ve always found it absurd that this very basic right that heterosexuals take for granted was never an option for me because I am attracted to men and not women. My sexuality is not questionable, I am what I am and there is no disputing that. Today, the judge in this case ruled that the premise of Prop 8 violates BOTH the due process and equal protection clauses of the federal Constitution. In other words it was found that the ban on same sex marriage brought about by Prop 8 in California was an improper ballot initiative and is now null and void.
There were 3 possible outcomes for this trial (from the Prop8 Trial Tracker Blog)
- LOSE – Prop 8 is a permissible act of the people acting legislatively.
Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us. In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest. This is the so-called “rational basis” test. Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system - Win – The implementation of Prop 8 is unconstitutional.
This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts. - WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don’t make wedding plans just yet.
We got the 3rd which is the best of the 3 and now sets the stage for the eventual appeal to the 9th circuit court of appeals. This win, going int0 an appeal is far better than going in with a loss. As I’ve said before, this fight is long from being over but this is a huge step in the right direction. You can expect to see over the next several weeks cries of judicial activism on the right (never mind that this judge was appointed by a Republican president) and hollering about the “will of the people”. This very decision however expels the idea that any majority has any right to VOTE FOR discrimination against a minority. If the decision is affirmed, it may easily nullify every state Constitutional ban on gay marriage that exists today (Michigan’s included).
The appeal process is expected to take up to 2 years to reach SCOUTS. By that time however, it is likely that additional states will have acted to affirm same sex marriage or begin work on repealing bans. It is sometimes tough to say but as California does, the rest of the country tends to follow. It is the largest state with the largest economy with some of the heaviest hitting political clout you can get. It’s not going to be all roses and rainbows but the trajectory is clear. Marriage will be an option for me in my lifetime if I wish to choose it and that, ultimately, is what it’s about. My right to choose my mate, to choose the person I love.
