Demonstrators swarmed Market Street, celebrating from The Castro to Civic Center on Aug. 4, when the overturn of Prop 8 was announced. Photo by Rink.

Prop 8 Supporters May Not Qualify to Appeal

Last week, when Judge Vaughn Walker issued his historic decision that ruled Proposition 8 was unconstitutional, I had an hour or so to read the lengthy opinion and write my article on the subject, hardly a scenario that allowed for nuanced analysis. At the time, Walker put a stay on his own decision, and called on attorneys in the case to submit briefs by Friday, Aug. 7, stating whether they believed marriages should be allowed to resume in California or not, pending appeals. Both California Attorney General Jerry Brown and Governor Arnold Schwarzenegger sent briefs to Judge Walker, urging him to allow his ruling to go into immediate effect, re-legalizing marriage for California’s gay couples.

Before the trial began, both these defendants had urged the judge to keep Prop 8 in place pending a full judicial review of its constitutional merits. Now, after weeks of testimony and a definitive ruling, these representatives of the state of California have come forward to announce that the verdict is clear and Prop 8 should be immediately struck.

Needless to say, the state of California, which declined to defend Prop 8 to begin with, has no intention of appealing the ruling.

Under the circumstances, it is highly likely that Judge Walker will not stay his ruling, although he might give the Prop 8 side another few days to ask the U.S. Court of Appeals for the Ninth Circuit to keep Prop 8 alive while the case continues. 

Or he might not. There is a very real question as to whether the Prop 8 interveners have the legal right to initiate a request for a stay, or any kind of appeal for that matter. They were not the original defendants in this lawsuit. And although Judge Walker allowed them to intervene on behalf of Prop 8, that does not give them the automatic right to petition for a stay or an appeal under Article III of the Constitution. 

In order to bring a cause to a federal court, whether to a trial court or an appellate panel, an individual or group needs to illustrate that they have suffered some tangible harm, and that the matter before the court is directly related to that injury. (This is a gross simplification of the rules of standing, but it will suffice for our purposes.)  It is unclear at present whether the Prop 8 campaign will be able to meet these or other tests, although some lawyers suggest that the question of standing is a technical obstacle that both the Ninth Circuit and the U.S. Supreme Court can overcome with a hop, skip and a skip if they so choose.

When I say “some lawyers,” I’m referring to one of the zillion legal articles I read which I can’t find at present. Many of the others see standing as a major issue that will derail the underlying case either right this minute, or at the Ninth Circuit level or beyond. Others see it as a complex but serious complication that throws the future of this litigation in doubt.

The idea that this case “is almost certainly going to be resolved by the U.S. Supreme Court” has become obscured by this development, which was first brought to the attention of the non-legal community by none other than Olson and Boies.

In their brief to Judge Walker opposing the issuance of a stay, the victorious legal team devoted a section to this notion that the Prop 8 people lack standing to appeal the case, and therefore cannot make an argument in favor of a stay. (In order to argue for a stay, you must also illustrate that you are likely to win an appeal on the merits of your case.) 

If Olson and Boies convince Walker that the Prop 8 team is legally barred from pursuing the case, the quest6ion of standing could take the litigation through a tedious side-trip of appeals on that issue. You know the route. Up to the Ninth Circuit. A request to the entire Ninth Circuit. If accepted, another set of briefs and hearings. If standing is denied, a cert petition to the Supreme Court. Tick tock tick tock.

And if the final answer is no standing, then Olson and Boies will no longer be able to bring the fight for marriage equality to the higher courts. The upshot will be the restoration of marriage rights in California, period. No fabulous precedent in the appellate court. No landmark SCOTUS decision. “Just” the freedom to marry restored in the most populous state in the country.

Under these circumstances, it’s interesting that Olson and Boies chose to bring up the subject of standing. They are the ones who have been calling for a dramatic federal challenge that will end the legal conflict over marriage equality once and for all. The “Gay Law” crowd, on the other hand, are the ones who have urged caution. And who would quite likely be pleased if the High Court were out of the picture.

Oh, and here’s a question for the lawyers. If the Ninth Circuit granted standing and issued a ruling in our favor, could the High Court strike it down based on the notion that the losing side lacked standing? I guess they could nullify the entire procedure. I suppose they can do anything they damn well please, which makes articles like this pretty pointless.  But fun!

Meanwhile, Imperial County, a section on the eastern southern tip of California that voted 70 percent in favor of Prop 8, has asked the Ninth Circuit to let them intervene in the case in order to appeal Judge Walker’s ruling. Last week, Judge Walker denied this same request, ruling that since California as a whole declined to appeal, Imperial County could not assert itself as a representative of the state in this matter. This development seems to me to add weight to the idea that standing may become a major issue.

And There’s More
Another topic of discussion in the last week has been the extent to which Judge Walker embedded the trial record in his 80 findings of fact. Most commentators say these “facts” will make his ruling difficult to overturn, since appellate courts generally must accept the findings of fact from trial courts and look only to the legal conclusions.

This is true to some extent. But some analysts have pointed out that some of Walker’s “facts” are so broad, and so speculative, that they could easily be dismissed by reviewing courts as beyond the scope of a trial judge. If Judge Walker were to note, for example, “it is a fact” that Prop 8 is unconstitutional, an appellate court would not be bound by his conclusion. Nonetheless, many of Walker’s findings of fact lay waste to junk science and irrational arguments that have too often found their way into the assumptions of higher courts. And no one can argue that he did not create a fantastic trial record that bodes well for the future of the case, if indeed it has a future.

And the interesting developments keep coming. How about the fact that very few major Republicans have made a fuss over Judge Walker’s decision?

Aside from the anti-marriage activists, the response has been muted, and there is a very real sense that most GOP politicians want to avoid the subject of same-sex marriage with a ten-foot pole.

We are told that support for gay civil rights rises between one and two percent per year, through a combination of demographic change and shifting opinions. That would suggest an eight to ten point improvement in public sympathy for our cause since 2004. Combine that with the decline of the religious right, the appearance of a conservative champion in Ted Olson, and Democratic control of Congress and the Presidency, and the likelihood of a call for, let’s say, a federal marriage amendment, shrinks like a prune. Even the racist Tea Party has appeared indifferent to gay issues. Do they really want to add gay bashing to their bigoted reputation? Don’t think so.

Indeed, it feels as if the writing is on the wall for the opponents of gay rights and most Americans have read it. Our only real fear would lie in an anti-marriage decision from the U.S. Supreme Court. And although Anthony Kennedy’s vote is far from automatic, the author of Romer v Evans and Lawrence v Texas is well on his way to earning a historic legacy as a champion of gay equality. Would he throw that away by casting the deciding vote to roll back equal rights for a generation? 

In this context, what do we make of President Obama and others in the Democratic Party who continue to make the counterintuitive claim that they support equality but simultaneously believe marriage is a union between a man and a woman?

This balancing act has worked for the last several years as Americans have come to grips with their competing desires for fairness and tradition. Civil unions have seemed like a fine compromise, offering the rights and responsibilities of marriage while preserving the status quo.

But you can’t walk a semantic tightrope forever. As time goes by, the inferiority of civil unions has become increasingly clear and the point is being hammered home that anything short of marriage is unacceptable and unequal. If marriage is just a word, then explain again why the word is reserved for certain couples and denied others? Explain how that is “equal.”  And explain all of that without coming right out and saying that straight couples are morally superior to gay men and lesbians. It’s impossible.

Today, the only factions with sustainable positions are those who favor marriage equality, and those who openly condemn homosexuality in all contexts.

Everyone else, including Obama, will eventually have to pick a side. And I can’t imagine that the basically well-meaning people who would like us to have rights, just not the “m” word, are going to step backwards into the mindset of the 1950s and ‘60s, rather than move forward into the 2010s and ‘20s. 

It’s all over but the shouting, which is not to say that the shouting won’t go on for a few more years.

Mexican Supreme Court Says States Must Recognize Gay Unions
Meanwhile, the rest of the world keeps turning in our direction, not counting the Arab peninsula of course. 

Mexico’s highest court has ruled 8-2 (with one justice absent) that same-sex marriages contracted in Mexico City, which were legalized last March, must be recognized throughout the country.  

On Thursday, Aug. 12, the high court will separately determine whether Mexico City’s gay adoption rights are to be recognized nationwide. 

As far as I can tell, Mexico City does not have a residency requirement for marriage licenses, which would imply that the entire country is now a marriage equality nation. I am making this assumption based on various websites that detail the procedures for Americans who want to get married in Mexico. If Americans can marry in Mexico, I guess people from Acapulco can marry in Mexico City. 

Over in Costa Rica, the high court has nixed a ballot measure that would have outlawed same-sex marriage, ruling that it is unconstitutional to put the rights of a minority to a majority vote. 

And here’s an interesting tidbit out of New Mexico that I just stumbled over while trying to find out whether Mexico City has a residency requirement. Do you remember back when San Francisco and other towns were issuing renegade marriage licenses in the spring of 2004? One of those renegades was Sandoval County, where Angela Carrejo and JaNelle Haught tied the knot. 

Now, Angela and JaNella are calling it quits, and a judge has granted them a divorce, ruling that while it’s not clear that their marriage license was valid, nor is there any evidence that it was not. Ergo, divorce granted. The news is significant, since many courts in non-marriage states have gone out of their way not to grant divorces for fear of setting a precedent of recognizing the doomed marriages in the first place. Not so Judge Sarah Singleton. New Mexico is one of the few states with no official policy on same-sex marriage. Maybe the only one. I’ve lost track.

Sorry for the lack of comic relief in this column. I will inject extra levity into my efforts for next week.

-arostow@aol.com