Flop 8 Update

  1. Both parties were supposed to submit their filings re: The stay of Judge Walker’s decision on Proposition 8 today. There will not be an additional hearing. Walker said previously he will issue a ruling as quickly as possible. Note: At 6.05 p.m. (EDT? PDT? Arrgh!) SCOTUSblog reported Flop8rs had yet to file.
    • If he grants the stay, California will not be able to issue marriage licenses to some of its citizens.
    • If he denies the stay, Flop 8rs will run the the District IX court (squealing Weee! Weee! Weee!) and request a stay pending their appeal (they may have done so already). I’m not sure if California would be able to issue licenses during the interim, but I’m trying to find an answer.
  2. Kudos to the District Court of Northern California for setting up this special website.
  3. A great analysis of Walker’s ruling. Check out SCOTUSblog for a legal eye view.
  4. Two named defendants in the case has given the stay a thumbs down. (via Bloomberg BW):

California Governor Arnold Schwarzenegger and Attorney General Jerry Brown opposed a request by supporters of a voter-approved ban on same-sex marriages to stay a federal judge’s order that found the ban violates the U.S. Constitution.

“Proposition 8 is unconstitutional,” Brown, a Democrat running for governor, said today in a filing in federal court in San Francisco. “The public interest weighs against its continued enforcement.”

Schwarzenegger, a Republican serving his last term, said in a separate court filing that waiting for the appeals court to review Walker’s ruling before letting it go into effect isn’t necessary to protect any governmental or public interest. California has already allowed 18,000 same-sex couples to marry before the 2008 ban without suffering any harm, the governor said.

5. Via SCOTUSblog:


1 Comment

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One response to “Flop 8 Update

  1. In California, Federal Judge Vaughn Walker ruled on August 4 that California’s proposition 8, which outlaws same-sex marriage, was unconstitutional, thereby striking the law.

    Now, before anyone gets up in arms(on the right or the left), realize that this is one step in a very long and arduous process. And, this was an expected step. Both sides had stated that they would appeal if the decision was not in their favor, and both sides have claimed that they will take this case as far as possible. The likeliest outcome is that the legal battle over prop 8 will end in the Supreme Court of the United States.

    If this case does go to the Supreme Court, opponents of Prop 8 have one huge advantage. Both of their lead attorneys have tried cases in front of the Supreme Court. Ironically enough, both were involved in the landmark case Bush v. Gore (2000), with one representing Bush and one representing Gore. Now, both sides have teamed up in order to fight against Prop. 8. Being an ideologically diverse team who have both argued cases for the highest possible stakes is an asset that one can’t quantify. They understand the pressure involved and know how to navigate through the media limelight.

    The next step in this process will be for the case to go to the 9th Circuit Court of Appeals, which overseas California. The 9th Circuit is known as a somewhat wacky circuit whose decisions are overturned with fair regularity. Smart money is betting on Judge Walker’s decision (against Prop being upheld in the 9th circuit.

    Once we get past the 9th Circuit, the Supreme Court will choose whether or not to hear the case. In the Supreme Court, we can safely say that there are 4 votes against Prop 8 (Sotomayor, Breyer, Ginsburg, and likely Kagan, after confirmation). There are likely 4 votes upholding prop 8 (Thomas, Scalia, Roberts, Alito). This means that Justice Kennedy, who represents the only swing vote on the Court, would decide this likely 5-4 decision. And, when it comes to an issue of this nature, it would be tough to predict Kennedy’s vote.

    The best indicator, however, should give hope to opponents of Prop 8. In Lawrence v. Texas, the landmark ruling that struck down Texas’ anti-sodomy law, Kennedy wrote the majority opinion, arguing that there is little factual evidence supporting the idea that homosexuality is a historically condemned practice.

    Either way, opponents of prop. 8 have little to lose in this fight. If they win the Supreme Court case, gay marriage becomes legal and a major piece of the Gay Rights agenda is locked into place. If they lose, then the Supreme Court would not argue against gay marriage being legal, but instead would argue that States should decide the matter for themselves. This would throw the fight out of the legal arena and back into the political arena. And, considering the direction our society is moving in, it seems likely that within ten to twenty years, the majority of states will recognize gay marriage. – Jon Saur