California Uber Alles

[drwex]

I'm slightly surprised there hasn't been more on my LJ friends page about this decision. Maybe y'all are as busy as I am - I've started to write this piece twice and failed. I can't let it pass, though, so here are my bullet points.

1. This is pretty much how I expected the decision to come down. Given the (fundamentally broken) way things work in CA I could not see any other outcome.

2. This puts the CA supreme court in the sad-but-amusing position of saying two years ago that the right of gay people to marry was a "fundamental right" and this year saying that people can be denied those fundamental rights by virtue of a popular vote.

Think about that for about two seconds and if you don't bust out laughing you're not paying attention. A friend of mine in CA points out that his marriage to an Asian woman would have been illegal a mere 50 years ago as it would have contravened the state's then enforced anti-miscegenation laws. I suggest if you really want to mock this in the proper way that you (Californians) start a ballot campaign to bring those laws back. Because, really, you aren't defending marriage enough! And your supreme court just said that a popular vote can deny fundamental rights!

(Do you feel the stupid yet? Does it burn? Laugh, clown, laugh.)

3. Now it gets interesting. This decision creates not one, but TWO unequal classes. There are gay couples as a whole, who are treated unequally, and there are the 18,000 special case gay couples. And if you think THAT isn't grounds for a federal challenge you're still not paying attention (and probably find my LJ boring to boot). Oh, look, some big-name lawyers think this way too: http://latimesblogs.latimes.com/lanow/2009/05/new-front-in-prop-8-battle-launched-today-with-federal-suit.html

The case is basically a claim that Prop 8 violates Federal statutes with respect to equal protection and due process. The potential for hilarity here is enormous.

Option one is that the Federal court upholds Prop 8, which both says "it's OK to treat all-but-some-gays unequally" and opens the door to a SCOTUS appeal.

Option two is that the Circuit would overturn Prop 8 and the pro-8 people would appeal to SCOTUS.
Option two-A is that they'd leave the Circuit decision stand because they don't want a gay marriage case to go to SCOTUS, particularly with a new Obama appointee on the bench. That would leave the very funny situation where all states in that Circuit would have a local precedent more or less approving gay marriage, but that wouldn't apply anywhere else in the US.

Option three (the one I think is most likely) is that Prop 8 will get overturned by another ballot proposition before the case is decided at the Circuit level and the original appeal will be mooted.

I happen to think that in either case one or two, SCOTUS will refuse cert. If they're going to take a gay marriage case it'll be a direct DOMA challenge, not a silly state proposition challenge. It can't have escaped anyone's attention that a Federal decision on Prop 8 is de facto a decision on DOMA.

It's like a real-life choose-your-own-adventure script! Have a drink and laugh with me.

Comments

[tamidon.livejournal.com]

I really wish they would wait on the SCOTUS case
we need more states on board to make a major argument
if 8-10 states legalise by 2011-2012 that's getting harder and harder to ignore. Anything now could set a negative precedent that would be harder to get around

neither side wants a SCOTUS case

[drwex]

I don't think the balance of states' laws will be the deciding factor. Abortion certainly wasn't legal in the majority of the US when SCOTUS found a right for it. It's much more down to the individual judges.

Which is the interesting bit here. Among the conservative majority on the Court now are a couple who are really strict constructionists. DOMA is a Federal intrusion into the regulation of marriage, which has always been a states' rights issue. I can see how the strict justices might just be swayed to side with the liberal justices and form a 6-3 majority that would overturn DOMA not because they particularly agree on equal rights grounds, but because they see it as violating basic Constitutional separation of powers.

Re: neither side wants a SCOTUS case

[mrf-arch.livejournal.com]

Except that the supposed "strict constructionist" bloc are mostly right wing authoritarians, not actual strict constructionists.

[dpolicar]

I'm not quite prepared to laugh, but I do basically agree with you.

I'm sorry

[drwex]

I can see how you might not laugh. Prop 8 was true tragedy. But the aftermath? This is high farce.

[dr-memory.livejournal.com]

Option four: fix the fucking CA constitution already.

[feste-sylvain.livejournal.com]

Yes, that. The more I look at the CA Supreme Court decision, the more it becomes apparent that it's the initiative amendment process which is fundamentally broken, not the CA Supreme Court decision itself.

"The problem with monarchy is that it presumes that one man is smarter than a million men. And the problem with democracy is that it presumes that a million men are smarter than one man."
-- G. Bernard Shaw

Sure, go for it

[drwex]

As I said in point 1 it's fundamentally broken now. Constitutional Conventions are dangerous things, though, and I see no realistic hope such a convention would be called or even if it was that it would change the constitution of the state in such a way as to prevent these sorts of farce in the future.

Re: Sure, go for it

[mrf-arch.livejournal.com]

The CA Constitution can't get much more farcial, so the bar here is pretty low...

[dr-memory.livejournal.com]

See also. It's not just Prop 8: the structure of the CA constitution has made budgeting impossible, and bond default a near certainty. It's a disaster at every possible level.

[docorion.livejournal.com]

The CA Supreme Court is in the uncomfortable position of having to interpret the law, which has changed since the last time they interpreted it. I doubt they like the taste any better than you do, but it's the law. I expected this decision to come down this way as well, because the plain intent of the CA constitution (in all its glorious idiocy) is to make the majority king, even when the majority is an idiot.

Most observers really would rather wait on the SCOTUS appeal for there to be a better SCOTUS for the appeal. The current court would likely rule on ideological grounds not to the liking of proponents of marriage equality. (Oh, they'd cloak it in lovely legal language, but make no mistake, they'd find a way to rule for a DOMA scheme). Either more states have to pass marriage equality (whereon the justices can start to feel the wind beneath their wings) or more justices have to retire and allow younger (and thus less likely to rule against marriage equality, so the thinking goes) justices to sit.

This was pretty much the road plowed by the passage of Prop 8. Which is why I haven't said much-I didn't expect anything different.

[c1.livejournal.com]

but make no mistake, they'd find a way to rule for a DOMA scheme
I agree. Nothing about Scalia makes me think he'd ever go for gay marriage-- he'd find some way to wriggle out of it, although I think it'll be more along the lines of denying cert.

[mrf-arch.livejournal.com]

elfs has an interesting take here.

Elf is right, and wrong

[drwex]

And it's a point I had made in my previous (never posted) summary: the CA court officially enshrined "separate but equal."

And we know how well that worked last time. I refer you to Plessy v. Ferguson whose language will seem remarkably familiar I think.

I don't think gay people should be looking at "separate but equal" as a win in this case. I do think we'll eventually see things called "civil marriage" and "religious marriage" separated (for real) but they'll be different things, since the rights and obligations will reside wholly in the civil designation. I think the tussle going on up north of us now is the first birthing pangs of this.

Re: Elf is right, and wrong

[mrf-arch.livejournal.com]

Nor do I think gay people in California are willing to let the case stand in the current "separate but equal" form. On the other hand, it might open up some new avenues to attack the problem, since the court case put the focus pretty sharply on the fact that there's a big fight over the word "marriage" that's only partially overlapped with the fight over equal rights.

[intuition-ist.livejournal.com]

i'm kinda-halfway suspecting that they ruled the way they did so it *would* go SCOTUS. so they could stop playing whack-a-mole with the stupids and just get on with life.

[awfief.livejournal.com]

Mostly I'm just seeing "stupid Californians!" on my flist. I'm not writing any diatribes on it, though, simply because it's so obviously farcical. I don't really feel I have anything to add, or have any new points to make.

[hartmans]

Hmm. I'd kind of expect the circuit court to argue that DOMA and the
equal protection statutes were at the same level and DOMA is more
specific and congress knew what they were doing. So basically side
stepping the issues. Ultimately, if you phrase this in terms of
statutes this just isn't really very interesting from a legal
standpoint. It's only when you bring in constitutions and inherent rights that it gets interesting.

[adrian-turtle.livejournal.com]

Most of the state Defense of Marriage [acts or amendments] explicitly forbid recognition of same-sex marriages formed outside the state. One interesting thing about that 18,000-marriage exception is that it opens the door to a great many more couples. The ruling is against forming new marriages, not against recognition of existing marriages, so it doesn't get in the way of full faith and credit. It's not as good as New York's executive statement that the state will recognize same-sex marriages formed outside the state, while the legislature is working on the matter, but it seems to be in the same direction. Is anybody pushing this angle, or focusing efforts on a new ballot prop?