Friday, August 6, 2010

It's Not Over Yet -- What's Next for the Prop 8 Case?

[Don't forget to check out the links!]

Apparently, it did post (the second time). Anyway, so I just wanted to elaborate on this really fast. Not to put a damper on that last post (the guest post), but this is far from over...

There are still 2 more trials (well, appeal & then trial) to go regarding the California case, and many politicians are reluctant to make this the big issue we need it to be. We haven't heard all that much from proponents of Prop 8 since the first trial ended. Why? Speculators suggest that issues such as the economy and immigration are enough of a distraction for conservative voters. (In which case, maybe it'd be a good idea to get DOMA & DADT repealed now ;-) Quick, before they pay attention again!) All I've personally seen are comments from reporters and pundits that the judge is biased because he is gay. I don't know if that's true, and frankly, I don't know if we should care. I think it's probably just a The question is, does it matter if a gay judge rules on a gay rights trial? Does it make a difference? [EDIT: Turns out it is possibly true. but not proven (SFGate. Very Questionable source), but was considered a non-issue. We shall have to see if it matters in the appeal... supposedly the lawyers have not yet decided (HuffPost) whether it will be of concern.]

I don't believe that his orientation should have any bearing whatsoever on his ability to give an impartial ruling, especially if you were to consider it as any other characteristic - gender, ethnicity/race, age, etc. It's just another trait at the end of the day. (By that same logic, "people of color" (as we have been called, much to my dismay) shouldn't be allowed to rule on issues of "race." Since that's just as much of a bullshit argument as orientation, I think it's safe to say that this will play out in our favor...) And I do believe his record (what little I've read of it, I'll admit) does indeed show that he keeps his personal ideology outside of the courtroom. The "smear campaign" against him is pretty weak... However, we do have to consider that it's very possible that no matter how "liberal" the 9th Circuit court is assumed to be, they could very well throw out the ruling on the grounds of a (at this point assumed) conflict of interest or other bias. For all we know, it could all be true. Should it matter? Of course not. Will it? We don't know. And for that reason alone, perhaps we should keep this in the back of our minds...

All of that aside, I've seen some evidence that the Supreme Court is already reluctant to take on this case. If the appellate court somehow rules to overturn the verdict, then the case will never make it to the Supreme Court... And even if the court also deems it unconstitutional, the Supreme Court can refuse to take the case, regarding it as a "state problem" or simply a California issue.

In terms of the case itself-- it was a seriously crappy defense, & based on that alone, yes, the ruling makes sense. And Judge Walker did an amazing job-- to make a long story short, he went above and beyond the requirements. It is highly unlikely that new evidence will be admissible during the appeal. It's possible, but very rare. (There's a lot of legal jargon that I don't feel like trying to rewrite, but basically, I believe the defense will have to prove that they were unable to provide the evidence because of some unforeseeable circumstance.) Based on that alone, I think the ruling will likely hold, at least in California. That was a court case based on the California Constitution, if I'm not mistaken. What about the rest of the country? Again, that's just California, & it's not the only case regarding same-sex marriage. I think it's vital that this case get to the Supreme Court, if only in the hopes of setting some sort of legal precedent that trumps any state laws. We already know that most of the justices on the supreme court already think that a ban is constitutional, by their own "research," including Ms. Kagan. They argue that it's a "state thing." At least 30 states have already banned same-sex marriage, whether by statute or constitution (& several have had multiple court rulings that upheld the ban). So it's have the Supreme Court interpret the Constitution to mean that the ban is itself unconstitutional, and/or push ahead to try to get an amendment passed. (Scholars argue there isn't much of a difference. Either the interpretation changes, or we change the document itself...) And to change the federal Constitution itself with an amendment takes 2/3 of the states - 35 out of 50 need to agree, and as only 5 out of 50 so far have agreed... This case is just a first step towards equality. It's nowhere near over... whether or not that ruling will be considered/applied universally, or if it will be argued that the ruling can only be based on that particular defense and applied only to that particular state... or thrown out altogether. It can still be overturned before it gets to the Supreme Court... & then the Supreme never has to get involved. (Though I have no doubt whatsoever that we'll keep fighting until we've achieved equal rights for everyone, no matter how long it takes.)

Still celebrating, in my own way. (I'll be waiting for that wedding invite someday!!!)

The appeal has yet to be scheduled. In the meantime, let's whisper amongst ourselves... :-D

1 comment:

Anonymous said...

First off, you're totally right about the sexual orientation of the judge being a non-issue. I've seen other people basically make the argument that if Walker is biased- who isn't. That it's a silly idea to assume that a white straight male will be unbiased simply because he's a white straight male. Also, I don't think there are any grounds for the ruling to be overturned based on that. The proponents of Prop 8 obviously didn't feel it was an issue during the trial- they never motioned for Walker to recuse himself from the case. If they had and he had refused, then I could see grounds of the ruling being overturned and the case going back to trial. Since there wasn't a motion, it's unlikely that the ruling will be overturned based on Walker's perceived bias alone.

Second- Prop 8 put it in the California Constitution that marriage is defined as a man and a woman. This case challenged that as unconstitutional as a violation of the 14th amendment in the US Constitution. Specifically, the equal protection clause. The basics of the clause is that you can't pass a discriminatory law without proving that the government (usually the state government) has a very good reason/gains something from that law being in place. Thus the basis of the case for Prop 8 was two fold. Part one was that sexual orientation was not a group that could be discriminated against (Kenneth Miller). Part two is that state is interested in creating stable family units made up of two parents and their biological children (David Blankenhorn). And both those points were pretty much thoroughly blown out of the water.

I still think it's highly unlikely that the ruling will be overturned, because opponents of Prop 8 did such a fantastic job of presenting their case and the proponents did such a piss poor job. There's no court (I hope) that will uphold the idea that marriages are for making babies only. The only point I can see then ruling against is that it isn't possible to discriminate against sexual orientation. But I think there's enough precedent to say that it is.

I ramble :-D

~Storyteller Knight