Prop 8 news

[Jungle Red]

Posted: 11/30/12 at 3:08pm

"If the Supreme Court denies the appeal by gay marriage opponents, the Ninth Circuit Court of Appeals ruling that struck down Proposition 8 would stand and same-sex marriage would be legal in California."
via CBS SF

[Jordan Catalano]

Posted: 11/30/12 at 3:39pm

MSNBC is saying that they might just need more time to discuss it and can still make a ruling on Monday as to whether or not they'll hear any of these arguments.

[GavestonPS]

Posted: 12/1/12 at 8:59pm

A NY Times article says the Court often waits until Monday to release a list of cases it will NOT review.

Fingers crossed.

[Phyllis Rogers Stone]

Posted: 12/1/12 at 11:25pm

If the Supreme Court chooses not to hear it, that's good for California, but not so good for the rest of the country, at least not the parts of the country where gay people are denied by state constitutions from having the right to marry or form other marriage-like unions.
Updated On: 12/1/12 at 11:25 PM

[Jungle Red]

Posted: 12/1/12 at 11:30pm

The Prop 8 trial has always been about California, which is why some think SCOTUS will not review it, as the 9th Court has reviewed it enough.

[Phyllis Rogers Stone]

Posted: 12/1/12 at 11:33pm

Well, yeah, but if the Supreme Court were to rule it unconstitutional that would have an effect on the entire country, especially in the states that have Prop 8 equivalents.

Updated On: 12/1/12 at 11:33 PM

[bobs3]

Posted: 12/1/12 at 11:40pm

I have a very good feeling that the Supreme Court is not ready to touch this issue and will let the 9th Circuit decision stand. If there are future decisions by the other Circuit Courts that conflict with the 9th Circuit decision then the Supreme Court will have no choice but to take it up.

[broadwayguy2]

Posted: 12/2/12 at 9:00am

I DO think it is worth noting that the SCOTUS could choose to take the case and make a ruling that is broad, and applies to many / all states or they could rule very narrow and only apply it to CA, but we also have to remember that the justices have a total of seven same-sex marriage cases to discuss and I wager that because it is a hot button issue, they are extensively talking these through and want to issue statements on all of them at once... electing NOT to take Prop 8, but taking one to three of the other cases would still be a victory for the community and a chance to make huge strides...

[Phyllis Rogers Stone]

Posted: 12/7/12 at 3:27pm

Supreme Court to rule on California's Prop. 8 ban on gay marriage

[Jungle Red]

Posted: 12/7/12 at 3:38pm

And we wait. Again. I'm getting tired of it.

[Jordan Catalano]

Posted: 12/7/12 at 3:40pm

They're also looking at the constitutionality of DOMA. It'll be interesting...

[Jungle Red]

Posted: 12/7/12 at 3:51pm

Considering DOMA is Federal and Prop 8 is State, the two really aren't related. They can strike DOMA but keep Prop 8, and vice versa.

Striking DOMA won't automatically strike the individual bans on marriage in those states that have banned it.

[Jordan Catalano]

Posted: 12/7/12 at 4:17pm

No. But I was just saying they're also looking at DOMA.

[Phyllis Rogers Stone]

Posted: 12/7/12 at 4:38pm

It's still better for the country that they are have agreed to take the case. Perhaps it's not best for California individually, but these are issues that affect the entire country. There are gay people in places besides the coasts.

[Jordan Catalano]

Posted: 12/7/12 at 4:47pm

But those people don't call themselves gay. They call themselves Republican.

[Phyllis Rogers Stone]

Posted: 12/7/12 at 6:18pm

Considering DOMA is Federal and Prop 8 is State, the two really aren't related. They can strike DOMA but keep Prop 8, and vice versa.

Striking DOMA won't automatically strike the individual bans on marriage in those states that have banned it.

No, but - and I'm not a lawyer, so someone who is should feel free to correct me - but since the court will be deciding on the constitutionality of Prop 8, that will have an effect on states that already have similar statutes on their books.

[Jungle Red]

Posted: 12/7/12 at 6:37pm

What Prop 8 did that the other bans didn't do was reverse same sex marriage. At the time of Prop 8's passing, gay marriage was legal in California. So, the reversal of Prop 8 would mean that the law goes back to legal same sex marriage.

Reversing the bans the other states doesn't do anything to make gay marriage legal in those states, as it wasn't legal prior to the passing of those bans.

Does that make sense?

[Phyllis Rogers Stone]

Posted: 12/7/12 at 6:40pm

It does, but I still think (possibly wrongly, I admit) that if the Supreme Court rules it unconstitutional that makes all other bans unconstitutional.

[Jungle Red]

Posted: 12/7/12 at 7:19pm

From my reading, and I'm on my phone so I can't look up the articles easily, Judge Walker's argument against prop 8 was that it took away rights already granted to same sex couples.

Repealing Prop 8 only reverses the ban on gay marriage in California, not the other states.

[Yawper]

Posted: 12/7/12 at 8:35pm

It does, but I still think (possibly wrongly, I admit) that if the Supreme Court rules it unconstitutional that makes all other bans unconstitutional.

Not true. They could just return all marriage control to the states (i.e. strike down DOMA as beyond Federal purview). The Prop 8 review will depend heavily upon the details, argument presented, and narrowness of the SCOTUS opinion.

Not long ago SCOTUS reviewed affirmative action issues in admission to the University of Michigan. Two schools at the university had differing policies - SCOTUS upheld one school's standard while, at the same time, striking down the other school's standard.

[Phyllis Rogers Stone]

Posted: 12/7/12 at 9:41pm

Okay, now I'm a little lost. If they were to declare Prop 8 unconstitutional, how does that turn it back to the state?

And sorry, Jungle Red. I guess you are right.

[Phyllis Rogers Stone]

Posted: 12/7/12 at 9:56pm

Ted Olson and David Boies, two nationally prominent attorneys who launched the legal attack on Proposition 8, served notice that they would seek a broad ruling national in scope at a time when public opinion has turned in favor of gay marriage rights.

“We are going to address all the issues, focused on the fundamental constitutional right to marry of all citizens,” Olson said Friday.
LA Times

[GavestonPS]

Posted: 12/7/12 at 10:29pm

Phyllis, the attorneys who brought the federal suit to overturn Prop 8 may have a larger agenda, but according to my constitutional lawyer friends, the appellate court ruled very narrowly that Prop 8 was unconstitutional only because it took away a right to marry in California that had been previously in place.

Now if SCOTUS rules that any two people have a federal right to marry, that would also have the effect of overturning Prop 8.

But as others have suggested, SCOTUS could overturn Prop 8 on the ground argued by the 9th Circuit while still upholding the right of individual states to ban gay marriage where it has never been legal.

Personally, I was hoping they would just refuse to hear Prop 8, since it has its own special circumstances. But I have to wonder if the Court is thinking about the effect of the 9th Circuit's Prop 8 ruling on Washington and Maine, where voters just granted gays the right to marry.

If Prop 8 is upheld, then what is to stop voters in Maine, say, from changing their minds and abolishing gay marriage again two years from now? We could end up with a system where same-sex marriages are annulled and then reinstated every few years as the electorate changes its collective mind.

I'm told SCOTUS doesn't like that sort of chaos and it may be they intend to rule on Prop 8 in a way that will provide clarity wherever gay marriage is legalized (even if they don't decree a universal right of gay marriage on constitutional grounds).

Or it could all just be obstructionism by the right-wing members of SCOTUS. I don't trust Scalia and Thomas as far as I can throw them.

[GavestonPS]

Posted: 12/7/12 at 10:44pm

Okay, ignore most of what I just posted above. On the other Prop 8 thread, Pal Joey has linked to a blog that has the most comprehensive account of today's events I've seen to date. I hope he will forgive me for repeating the link here:

http://www.towleroad.com/2012/12/doma-and-prop-8-what-happens-next.html



In brief and in re the Prop 8 appeal, SCOTUS chose to ignore the narrow ground of the 9th circuit ruling and return to the original appellate judge, who ruled that banning gay marriage violated constitutional amendments on discrimination. As the blogger above puts it, this opens the door to a huge victory or huge defeat for proponents of gay marriage.

[Yawper]

Posted: 12/7/12 at 10:53pm

DOMA was a major first at the federal level and I'll be surprised if it stands.

Prop 8 depends upon the arguments - SCOTUS technically reviews laws, it does not legislate. Marriage has traditionally been controlled at the state level. Just as with freedom of speech, equal protection is not absolute - there are exceptions. The situation here has parallels with the kerfluffle over religious institutions and forcing health care coverage. "Marriage" is fundamentally a religious ideation. Beyond legal protection for minors or the unwilling the civil aspect of "marriage" basically amounts to contract law yet "civil unions" aren't considered satisfactory by activists. Is "marriage" anything more than a demand for recognition from religion?

I think they might even get blown out of the water on the argument that there's a constitutional right to marriage.

Updated On: 12/7/12 at 10:53 PM