Prop-8 Analysis

So the judicial aftermath of Proposition 8 being overturned(in case you live under a rock it was a ballot initiative funded by the Mormon church to ban gay marriage in California) has gotten a lot more complicated, and a hell of a lot more interesting.

http://www.time.com/time/nation/article/0,8599,2010377,00.html


Basically, long story short(and it is fucking complicated, so still kinda long)

Because it's a California law, the state of California had to be sued in order to over-turn it.  Irony of ironies, both the Governor and Attorney General of California were in support of gay marriage, and thus in a controversial move refused to mount a legal defense(Attorney generals are supposed to defend all state laws, regardless of their own political opinion).  As a result of this Judge Walker allowed random-anti-gay-group to defend the ballot initiative at trial.

However, now that the trial is over, Judge Walker has stated that the group may not have the legal right to file an appeal, as it does not directly relate to them, and that only the Governor or Attorney General can file an appeal.  They have until this Thursday at 5pm to do so, and they have both already previously stated they will not, and that they fully support Judge Walker's ruling.

So here's where things get fun.

If the group files an appeal despite Judge Walker's warning, the Circuit Court will have to rule on whether or not they have legal standing to file the appeal in the first place.  If they should decide that the group does not have legal standing to appeal, they may also rule that they had no right to defend the ballot initiative in the first place, thereby nullifying Judge Walker's ruling, and sending it back to his court to be rehashed out all over again.  Now if the Attorney General and the Governor are still in office at that time, Prop 8 is defeated and equality of marriage is established in California, however, neither of them will be in office come 2011, new Governor, new Attorney General..and thus the State of California may actually mount a legal defense for Prop 8.

Beyond that, if the Circuit Court rules that they do not have the right to appeal but does not undo the trial, the only option remaining would be to appeal to the Supreme Court to intervene, and the presiding Justice over the 9th circuit happens to be Justice Kennedy, one of the most respected jurists on the bench for his common sense interpretations of constitutional law.  He's likely to rule in favor of equal marriage, based on the findings of fact issued by Judge Walker, but whether or not he would decide the case needs to be heard by the supreme court..

These are the possible outcomes:

If the case is appealed all the way to the supreme court and the justices rule in favor of Prop 8, nothing changes.  Current status quo is that states can pass laws banning gay marriage.  Prop 8 is just another one of those laws.

If the case is appealed to the supreme court and the justices rule against Prop 8, it strikes down the states 'right' to legislate on this matter, determining as Judge Walker did that same-sex marriage is protected by both Due Process and the Equal Protection clauses of the constitution.  Such a decision would legalize same-sex marriages nationwide.

The only way the circuit court can impact this case(because no matter what if they decide to hear it it WILL go to the supreme court) is to rule that the proponents of Prop 8 had no legal standing to be in court in the first place, and as stated such a ruling would essentially push a restart button on the whole thing.  If by that time a new Attorney General OR Governor is in office, it is possible that a much stronger legal defense will be provided for Prop 8, one of the things that Judge Walker pointed out in his ruling was that the group that defended it did not do so very well.


It's important to understand that courtrooms are very different environments.  The Judge could very well find a different ruling if the case is reheard, based on what defense is provided that time around.  Judge Walker based his ruling on the overwhelming strength of the opponents case, compared with the weak defense provided by the group put in charge of it.  If the state is put in charge of defending Prop 8 they may present a more compelling legal case, and thus result in a different ruling, or at least one that is not so overwhelmingly for gay marriage.

If you are a supporter of Prop 8(aka a moron) that would be the ideal outcome for you.  I would also recommend sterilization.

If you are a supporter of Prop 8 you do NOT want this to go to the supreme court.

Scalia-Against
Roberts-Against
Thomas-Against
Alito-Against

Sotomayor-For
Kagan-For
Breyer-For
Ginsburg-For
Kennedy-For(every previous case regarding the rights of homosexuals he has voted in favor of, on the same legal basis that Judge Walker ruled, Due Process and Equal Protection)

5-4 Equal right to marriage for all Americans.