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News & ArtsWednesday, August 4, 2010
Politics Prop 8 Ruling: What Happens Now?
Posted by Eli Sanders on Wed, Aug 4, 2010 at 5:01 PM
A lot of rejoicing, obviously. But in terms of legal logistics: Judge Walker's decision is stayed pending an appeal—which will certainly come—meaning no new gay marriage licenses will be issued in California any time soon. Ultimately, everyone expects the appeal process to lead to the U.S. Supreme Court. You know: Scalia, Thomas, Roberts, et al.
If that gives you a sinking feeling, try a dose of Sullivan, who says:
I am increasingly confident that when this case eventually gets to the Supreme Court, the logic of equality will win.
1
So next is probably a three judge panel of the 9th circuit, and then en banc of the full 9th circuit court of appeals, and then Supremes if four justices want to grant certiorari.
2
On the brighter side, the appeals process will mostly consider issues of law - not facts. There is a great description of why the distinction over at http://prop8trialtracker.com/2010/08/04/…
3
Don't get too caught up in what happens with the Ninth Circuit. Unless there was some glaring flaw (which I don't believe exists), they're not going to reverse this. If the Supremes grant cert, though, that's a whole 'nother story.
6
It’s true that the celebration should be muted pending the eventual supreme court decision, but the prospects actually don’t look bad. Obviously Roberts, Alito, Scalia, and Thomas will vote to uphold prop 8 (i.e. block gay marriage), while Stevens/Kagan, Ginsburg, Breyer, and The Wise Latina will rule it unconstitutional...leaving Kennedy, as usual, as the swing vote. Although he can be conservative on some things he has consistently sided with progressives on social issues. The lasting impact of this decision may well be the unimpeachably clear logic used in the decision, which will be pretty tough to argue against.
8
the equal protection & due process issues are fairly slam dunk and so was the application of strict scrutiny of which the prop 8 advocates were left sorely lacking;
but the stay is somewhat worrisome. & of course the appeal moves forward but in the interim(after the 2 day stay) imo, the weddings should go forward.
& couples can be filling out/dusting off paperwork during the 2 day stay.
but the stay is somewhat worrisome. & of course the appeal moves forward but in the interim(after the 2 day stay) imo, the weddings should go forward.
& couples can be filling out/dusting off paperwork during the 2 day stay.
9
Just finished reading the decision. Walker could have ruled against prop 8 on the basis of just one argument. But instead he pretty much accepted every single argument against it.
He concluded that it violated both equal protection and due process. He concluded that it not only failed the strict scrutiny test, but that it would have failed even the far lower bar of the rational basis test (which pretty much no court ever rules any law fails). He concluded that homosexuals constitute a suspect class, which if accepted could have all sorts of other implications.
He concluded that it violated both equal protection and due process. He concluded that it not only failed the strict scrutiny test, but that it would have failed even the far lower bar of the rational basis test (which pretty much no court ever rules any law fails). He concluded that homosexuals constitute a suspect class, which if accepted could have all sorts of other implications.
10
Question to all the lawyers out there: would a SCOTUS upholding of Walker's decision automatically invalidate DOMA?
11
Emma: Knee-jerk reaction, yes.
David: I agree with your analysis. I don't see any way even the most right-wing nutjob could not find that homosexuals are a suspect class. Now, as you know, that's not necessarily fatal, but it certainly does raise the bar. There pretty much needs to be an over-riding governmental interest (already unsuccessfully argued in the trial court). We shall see.
David: I agree with your analysis. I don't see any way even the most right-wing nutjob could not find that homosexuals are a suspect class. Now, as you know, that's not necessarily fatal, but it certainly does raise the bar. There pretty much needs to be an over-riding governmental interest (already unsuccessfully argued in the trial court). We shall see.
12
there are going to be some big questions re: DOMA from the potential conjunction of todays prop 8 ruling and from this other recent ruling:
http://www.nytimes.com/2010/07/09/us/09m…;
Specifically this part of DOMA:
Section 3. Definition of 'marriage' and 'spouse':
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
I think that is the crux upon which it will be stricken down; fwiw.
http://www.nytimes.com/2010/07/09/us/09m…;
Specifically this part of DOMA:
Section 3. Definition of 'marriage' and 'spouse':
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
I think that is the crux upon which it will be stricken down; fwiw.
13
"The logic of equality." Perfect. It's true.
Andrew, you get a handjob for that one. I'd blow ya, but you're poz, and I don't suck latex-covered dick (I might as well be sucking off a dildo).
I trhink we might be at or near a tipping point, folks. Or, as the guy with the big mouth says, we are winning.
Andrew, you get a handjob for that one. I'd blow ya, but you're poz, and I don't suck latex-covered dick (I might as well be sucking off a dildo).
I trhink we might be at or near a tipping point, folks. Or, as the guy with the big mouth says, we are winning.
14
I remember when this case was kicking off, and everybody here thought Ted Olson being co-counsel for the plaintiffs was a sign that "the fix was in" on this, and that he'd sink the case. Well...
WHAT DO YOU THINK OF TED OLSON NOW, BITCHEZZZZ????
Just because someone's a Republican doesn't mean he or she couldn't be an ally. Learn it.
WHAT DO YOU THINK OF TED OLSON NOW, BITCHEZZZZ????
Just because someone's a Republican doesn't mean he or she couldn't be an ally. Learn it.
16
Well @15, obviously since gay people in most states aren't legally allowed to marry, it follows they also are not legally allowed to divorce. And since payment of child support is legally mandated only through divorce proceedings (SFAIA at least), obviously most gay people who have sired a child who is no longer considered their dependent could NOT in point of fact be legally compelled to pay "child support" as the term is commonly defined.
But this is all just a red herring on your part. The real question you should be asking is:
How may straight people who are legally obligated to pay child support don't?
I'll be the number is considerably higher than the one that hypothetically would answer your question...
But this is all just a red herring on your part. The real question you should be asking is:
How may straight people who are legally obligated to pay child support don't?
I'll be the number is considerably higher than the one that hypothetically would answer your question...
17
@ 3 - I dunno, depends on the panel they get. Of course, I'm waiting to see what happens during the inevitable rehearing-en-banc. (Those are always fun, but they're especially fun in the ginormous ninth circuit.)
@ 10, 11 - I'd also imagine that a SCOTUS ruling against prop 8 would invalidate DOMA. The reason (in my opinion) being that, since the 14th amendment has been reverse incorporated against the federal government, a finding that a state law banning gay marriage is unconstitutional would necessarily invalidate similar federal law. But federalism makes my head hurt.
@ 14 - Not "everybody" here thought that, Chris. There were a couple of commenters who seemed to think so, but for the most part people were just impressed that two legal rockstars had teamed up on the right side of the issue. And yes, Olson is the exception, rather than the rule.
@ 10, 11 - I'd also imagine that a SCOTUS ruling against prop 8 would invalidate DOMA. The reason (in my opinion) being that, since the 14th amendment has been reverse incorporated against the federal government, a finding that a state law banning gay marriage is unconstitutional would necessarily invalidate similar federal law. But federalism makes my head hurt.
@ 14 - Not "everybody" here thought that, Chris. There were a couple of commenters who seemed to think so, but for the most part people were just impressed that two legal rockstars had teamed up on the right side of the issue. And yes, Olson is the exception, rather than the rule.
18
@2 except that Supreme Court decisions routinely rely upon facts in Amicus Briefs that weren't before the trial court. Kennedy notoriously and noxiously ad libbed some new facts into his partial-birth abortion case http://www.lawyersgunsmoneyblog.com/2008…
19
@ 15: that has gotta be one of the most stupid ass comments/questions on slog ever.
because well, the ones that do, the ones that are completely out of your narrow view of reality do so at least as faithfully and dependably as the "straight" payers of child support, but since this is beyond your knowledge and you are just about spewing juvenile polemics, it might be better for you to kindly STFU. thanks.
because well, the ones that do, the ones that are completely out of your narrow view of reality do so at least as faithfully and dependably as the "straight" payers of child support, but since this is beyond your knowledge and you are just about spewing juvenile polemics, it might be better for you to kindly STFU. thanks.
20
Just because some of the SCOTUS justices are conservative does not mean they will vote to re-instate Prop 8. There are 80 validated arguments on how Prop 8, regardless of how many people voted for it, clearly and plainly goes against the Equal Protection clause and various other sections. They may be conservative but they are Constitutional lawyers, and you can't ignore - or go against - the constitution. NOM, et. al. have basically shot themselves in the foot by making this an issue. At some point in the future, the SCOTUS will have no choice but to remove same sex marriage bans across the entire country.
21
"NOM, et. al. have basically shot themselves in the foot by making this an issue"
I agree totally, but they had an untenable position from the start.
appeals to emotion and non-starter bigotry might have worked in the past but its' value is decreasing fast.
I agree totally, but they had an untenable position from the start.
appeals to emotion and non-starter bigotry might have worked in the past but its' value is decreasing fast.
22
and there is the "careful logic and structure of Judge Vaughn R. Walker’s opinion"
he took his time, heard disparate points of view, and came to the best & right conclusion. the people that disagree are the people that think law is is based on emotional and biblical pablum.
he took his time, heard disparate points of view, and came to the best & right conclusion. the people that disagree are the people that think law is is based on emotional and biblical pablum.
23
The question of a stay hasn't been permanently answered yet. According to Rachael Maddow it is a temporary stay. Both sides have been given until Friday to submit an argument about the issue. The judge is expected to make a final decision this coming Tuesday.
24
@ 15 &16- are you in Washington? Since when is marriage a determining factor in child support? I thought it depended on who claimed the kids as dependents on their income tax and/or who was filed against for support if they weren't paying on their own...
25
Good for Judge Walker and, considering what I read about his questions and the arguments presented by both sides during the trial, I figured he'd rule this way.
In the NY Times: In his ruling, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and women.
Of course it's irrational. Discrimination against gays and lesbians is primarily based in religion and religion is not rational. Religion is based on belief, not reason.
In the NY Times: In his ruling, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and women.
Of course it's irrational. Discrimination against gays and lesbians is primarily based in religion and religion is not rational. Religion is based on belief, not reason.
26
I quit Slog comments a while back, but I just wanted to point out that Scalia already (in his Lawrence v Texas dissent) believes that the majority affirmed gay marriage:
"More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.?"
"More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.?"
27
14/Chris: I remember when this case was kicking off, and everybody here thought Ted Olson being co-counsel for the plaintiffs was a sign that "the fix was in" on this, and that he'd sink the case. Just because someone's a Republican doesn't mean he or she couldn't be an ally. Learn it.
I'm not a lefty who simplistically believes that all Republicans are evil so I was never one of the cynics who questioned Olson's motives. What I did think was a reasonable criticism was that he and David Boies may be pushing for "too much, too soon", that what they set in motion will end up in the Supreme Court and then the Supremes, by a likely 5-4 majority, will end up backing Prop 8. Those critics weren't saying (or suggesting) that they felt Olson was doing that on purpose, that he wanted the Supremes to end up backing Prop 8. They just felt that was going to be the inevitable outcome of his well-intentioned efforts.
I'm not a lefty who simplistically believes that all Republicans are evil so I was never one of the cynics who questioned Olson's motives. What I did think was a reasonable criticism was that he and David Boies may be pushing for "too much, too soon", that what they set in motion will end up in the Supreme Court and then the Supremes, by a likely 5-4 majority, will end up backing Prop 8. Those critics weren't saying (or suggesting) that they felt Olson was doing that on purpose, that he wanted the Supremes to end up backing Prop 8. They just felt that was going to be the inevitable outcome of his well-intentioned efforts.
29
Child support is predicated on divorce? Wow, I didn't know that. So I can knock up as many gals as I like and, as long as I don't get hitched to any of them, I'm obligation-free? What a country!
Somebody tell the NBA! They're all wasting good money on child support for their illigitimate children!
Somebody tell the NBA! They're all wasting good money on child support for their illigitimate children!
30
Just one thing, from someone who's been there. Celebrate every victory. Celebrate now as if this is the end, and then celebrate the next victory as if you'd never celebrated before. When we were going through this process, there was always another thing before we'd know "it was done."
Canada's road to marriage equality was slow and piecemeal. Politicians were still running on "change the Charter of Rights and Freedoms to specifically exclude gays" 2 years after our Supreme Court ruling and a year after the Civil Marriage Act was passed.
All I remember from that time (1999-2006) was feeling like there was always a battle around the corner, and never a time that we could celebrate for more than a few hours before we had to start fighting again. I remember going to weddings, still feeling like I was "standing up for equality" instead of just enjoying my friends' happy day.
Don't worry too much about what happens next. Enjoy today. Today is the day that justice triumphs over bigotry.
Canada's road to marriage equality was slow and piecemeal. Politicians were still running on "change the Charter of Rights and Freedoms to specifically exclude gays" 2 years after our Supreme Court ruling and a year after the Civil Marriage Act was passed.
All I remember from that time (1999-2006) was feeling like there was always a battle around the corner, and never a time that we could celebrate for more than a few hours before we had to start fighting again. I remember going to weddings, still feeling like I was "standing up for equality" instead of just enjoying my friends' happy day.
Don't worry too much about what happens next. Enjoy today. Today is the day that justice triumphs over bigotry.
31
Everyone should read Romer v. Evans, the 1996 in which Justice Kennedy -- presumably the swing vote here -- using rational basis scrutiny (which does not require a finding that gays and lesbians are a suspect class), invalidated Colorado's anti-Prop 1. Romer is the reason, I think, that Olson & Boies thought this could turn out well.
The other huge advantage that marriage equality advocates have in this case is that the other side completely failed to make a factual case (not saying it could have been done, but they did not even make a creditable attempt). Yet appellate courts largely are constrained by the factual record in the case before them, and Judge Walters makes extensive factual findings against which there is no evidence in the record. It will, in the end, be awfully hard to reverse this decision, because of the complete lack of evidentiary support for the pro-Prop 8 position.
The other huge advantage that marriage equality advocates have in this case is that the other side completely failed to make a factual case (not saying it could have been done, but they did not even make a creditable attempt). Yet appellate courts largely are constrained by the factual record in the case before them, and Judge Walters makes extensive factual findings against which there is no evidence in the record. It will, in the end, be awfully hard to reverse this decision, because of the complete lack of evidentiary support for the pro-Prop 8 position.
32
It's hard to guess what SCOTUS will do. I agree that Kennedy is the obvious swing vote, and I certainly expect Thomas, Alito and Roberts to try to overturn this ruling, but I wonder if Scalia could uphold it. He's very conservative, yes, but he can also be a pretty strict Constitutionalist, and if the anti-Prop. 8 side can convince him that the 14th Amendment should protect them from discrimination, he might surprise us and rule in their favor.
33
@32 I think you are mistaken about your justice counting. Scalia will bend over backwards to support Republican policies. See his concurrence in Gonzalez v Raich http://en.wikipedia.org/wiki/Gonzales_v.…
Thomas is the only Republican justice that could potentially fall outside of the mainstream of the Republican Party establishment. He rather than Scalia, Roberts, or Alito is the only potential swing vote of the new Four Horsemen. Thomas, reactionary though he is, is the only one of the four that could reasonably be termed principled.
Thomas is the only Republican justice that could potentially fall outside of the mainstream of the Republican Party establishment. He rather than Scalia, Roberts, or Alito is the only potential swing vote of the new Four Horsemen. Thomas, reactionary though he is, is the only one of the four that could reasonably be termed principled.
34
I was a skeptic of this case, and nervous about its outcome. But Walker's ruling is pretty unambiguous and pretty thorough. It isn't a minor victory based on some detail. It is a broad, sweeping ruling, invalidating the opposition completely.
We can never predict with certainty, of course, but this will be a difficult ruling for the SC to overturn. Right now, color me cautiously optimistic.
We can never predict with certainty, of course, but this will be a difficult ruling for the SC to overturn. Right now, color me cautiously optimistic.
35
The righties on the supreme court are very libertarian. This could easily mean 7+ votes in favour of gay marriage. I could see a 'State's rights' argument where they don't want to touch it but Alito & Roberts are cooperate shills they don't really care about social issues..
36
Here's a question: Given that this was a FEDERAL judge making a federal ruling, doesn't this pave the way for same-sex couples in EVERY state to now get married (pending the outcome of the stay)? Please advise.
37
@33 -- Thomas is the LEAST likely to swing to the correct side. Principled? He thinks it's okay to strip search a 13-year-old girl (Safford Unified School District #1 v. Redding), the only justice to think so.
38
Sorry, Sam, it doesn't work that way. A ruling by the 9th Circuit would affect the states in that circuit, though. It needs to be a Supreme Court decision for it to affect all of the states.
39
@38 -- so, same-sex couples in the 9th circuit should be able to get married? That doesn't sound right, but one remains forever hopeful.
40
So what happens if the 9th affirms the decision to toss Prop 8, but the Supremes decline to take it up?
41
That's the best question of the thread, Joe. In that event, gay marriage would only be legal in the states in the 9th Circuit, and wouldn't be legal in (nor would they need to be recognized by) other states - or by the federal government. This is a possible scenario, but an unlikely one.
42
@40, 41 -- I'm not a lawyer, nor do I play one on TV, but if a federal court says marriage bans are unconstitutional and the Supremes don't take the case, I'm not sure same-sex marriage would immediately become the law of the land, but it would certainly pave the way for suits in other circuits.
43
How ironic that the Mormons and haters who tried to halt marriage actually gave us the case that will likely serve as a vehicle for gays to finally argue before the Supreme Court. Gay marriage will be coming to Utah in 3 years rather than 25.
THANK YOU H8ers!!!
THANK YOU H8ers!!!
44
"Pave the way?" Maybe. Although this sort of thing happens all the time - it's pretty common for the law to vary from one circuit to another. One circuit's decision isn't binding on other circuits.
45
This is probably the biggest political twist in a judge's ruling I remember. Vaughn Walker, before he was a judge, was a lawyer supporting an anti-gay party in an Olympics related dispute. I'm not sure the Republicans who appointed him judge expected something like this to happen in the future.
Hopefully other older Republicans mellow out Barry Goldwater style.
Hopefully other older Republicans mellow out Barry Goldwater style.
46
The 9th Circuit's rulings are only binding on the courts within the 9th Circuit (federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and a few territories in the Pacific). Other federal courts can look at the 9th Circuit opinions as persuasive opinions or as guidelines, however most federal appellate courts view the 9th Circuit as the liberal outlier and generally don't follow its precedents. Only SCOTUS decisions are binding on all federal courts.
Also for the DOMA questions, a SCOTUS ruling in favor of the Honorable Judge Walker's decision would not automatically overrule DOMA. A SCOTUS decision affirming Walker's opinion likely could be used to overrule DOMA, but it would need to be challenged separately in court, which is a long road to travel.
Also for the DOMA questions, a SCOTUS ruling in favor of the Honorable Judge Walker's decision would not automatically overrule DOMA. A SCOTUS decision affirming Walker's opinion likely could be used to overrule DOMA, but it would need to be challenged separately in court, which is a long road to travel.
47
I'm happy as hell that Prop. 8 was overturned, but I think that everyone needs to be a bit cautious.
The conservative majority of the Supreme Court demonstrated in Bush v. Gore that it could ignore any notions of jurisprudence when it comes to the need for toeing the traditional Republican line and showed that they care more about their conservative "values" than case law or the constitution. As people have said, they may very well ignore Walker's finding of facts and reasoning and pull their decisions right out of their asses.
The conservative majority of the Supreme Court demonstrated in Bush v. Gore that it could ignore any notions of jurisprudence when it comes to the need for toeing the traditional Republican line and showed that they care more about their conservative "values" than case law or the constitution. As people have said, they may very well ignore Walker's finding of facts and reasoning and pull their decisions right out of their asses.
48
My favorite part of the ruling is that Judge Walker cited Scalia's dissent in Lawrence v. Texas (p.61), where Scalia criticized the majority for basically removing any basis for finding a gay marriage ban constitutional.
On the theory that Walker specifically wanted to write an opinion that the Supreme Court would have a very difficult time overturning (which is purely hypothetical, of course, because we all know judges never let politics compromise objectivity), it's like he went out of his way to send a message to Scalia--"you can't vote to overturn this without blatantly contradicting yourself."
On the theory that Walker specifically wanted to write an opinion that the Supreme Court would have a very difficult time overturning (which is purely hypothetical, of course, because we all know judges never let politics compromise objectivity), it's like he went out of his way to send a message to Scalia--"you can't vote to overturn this without blatantly contradicting yourself."
49
@ 17 - Ok Anne, you're right, it was only suggested by a few.
@ 27 - I remember when the trial started, many said that using the Due Process and Equal Protection clauses of the freakin' 14th Amendment to the US Constitution as one of the bases for our side's case was risky in terms of setting things back if we lost, but I think it makes for a stronger case now, don't you think? High risk, high reward.
@ 27 - I remember when the trial started, many said that using the Due Process and Equal Protection clauses of the freakin' 14th Amendment to the US Constitution as one of the bases for our side's case was risky in terms of setting things back if we lost, but I think it makes for a stronger case now, don't you think? High risk, high reward.
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