Blogbeat: How to Keep Up on Prop. 8

By Thomas Lord
Tuesday August 17, 2010 - 12:44:00 PM

Today’s theme: The latest on Prop. 8 and pointers to sources to help you keep up on the legal proceedings. 

The Latest in Prop. 8 Legal Proceedings 

On Monday (16 Aug 2010) the 9th Circuit Court of Appeals extended the stay on Judge Walker’s decision to overturn Prop. 8. Same sex marriages will not resume in California Wednesday evening.  

As you must have heard, Proposition 8 decrees that California shall not recognize same-sex marriages.  

It was overturned in federal district court as being violation of the 14th and 5th amendments to the U.S. Constitution. Judge Walker, who decided the case, ordered that Proposition 8 be overturned and that same sex marriages resume in California. In anticipation of appeals against his decision, he also ordered a temporary stay of his decision—delaying, by a few days, the resumption of same-sex marriages. The delay was designed to allow defenders of Proposition 8 a chance to make their case for an extended stay during their appeal. The extended stay was granted by the 9th Circuit Court of Appeals. 

The court offered no explanation for extending the stay but did order that the appeal to Judge Walker’s decision will be conducted on an expedited basis. Final briefs from the attorneys are due by 1 November 2010 and the hearing will be held during the week of 6 December 2010. The court’s customary rules in which either side may ask for extensions of this schedule have been suspended, indicating that the 9th Circuit views it as important to hear and decide the appeal quickly. 

In addition to ensuring that the appeal is concluded quickly, the 9th Circuit took up an issue raised by Judge Walker: Do the people appealing Judge Walker’s decision have the legal right to do so? The state has declined to defend Proposition 8 or appeal Judge Walker’s decision. The appeal was made by the citizens who also defended Proposition 8 before Judge Walker. The 9th circuit observed that the appellants are not themselves obviously harmed by Judge Walker’s decision. Citing a Supreme Court decision from 1997, the 9th Circuit suggested that the appeal must be dismissed because the appellants have no legal standing to bring it. The appellants have been ordered to prove that they have standing to bring the appeal. 

Most legal experts who have publicly expressed an opinion seem to view this turn of events as favorable for the opponents of Proposition 8. The expedited schedule and the order that the appellants prove they have the right to appeal suggest what direction the 9th Circuit might be leaning toward. 

Easy to Make Fun Of 

The Prop. 8 defenders presented several arguments for a stay of Judge Walker’s decision. Some of their arguments are easy to poke fun at—arguments that are ludicrous on their surface. To wit, this example: 

Do you agree or disagree with the following Proposition? If same sex marriages are permitted, more heterosexual encounters will result in children born out of wedlock and raised by a single parent because heterosexuals will more often conceive children accidentally, outside of wedlock. In other words, if Alexander can marry Christopher, won’t that make it more likely that Beatrice gets knocked up (out of wedlock) by Daniel, with the resulting child raised by a single parent? 

Wipe that smirk off your face. Yes, they really said that. They wrote that argument down (in fancier language) and showed it to a judge, expecting it to be taken seriously. Yes, really. That’s how I felt, too. Can you believe it? To me, such a Proposition seems absurd on its face. If someone asked me such a question, I’d assume they were joking. I’d laugh. I could probably make up an argument in favor of it if I were required to for a college class in forensics – but I would not expect any rational individual to believe the best argument I could muster. The Proposition is like a bad joke. I would try to get a passing grade in that forensics class by making my argument very funny – yet keeping a completely straight face while improvising elaborations of the silly argument. 

Among their many arguments, the Prop. 8 defenders have asked to continue the stay on the grounds that it is perfectly plausible that same sex marriages will increase the number of out-of-wedlock and single-parent situations among those who engage in heterosexual behavior. Go figure. 

Nevertheless, the fight is very far from over: 

Hard to Dismiss 


Let us not, please, underestimate the defenders of Proposition 8. They are not stupid. Well, they are not stupid at legal strategies and tactics, at least. 

The issue of the lifting or extension of the stay against Prop. 8’s overturn is, to Proposition 8 defenders, but a battle—not the war. The war they are waging is not decided by that battle no matter what the outcome. The war they are waging is to establish a federally binding legal precedent that Proposition 8 is constitutional. Their war is decided only by the final actions of the 9th District Court of Appeals and, then, by the Supreme Court of the United States. With such a victory in the war, they can repeat Prop. 8 in other states. Without such a victory federal courts may yet decide that no state may deny the right to same sex marriage. 

In other words, Prop. 8 defenders could have lost the fight about the stay – and same-sex marriages resumed for now – yet still have won the war if Prop. 8 were ultimately upheld. 

In that context, we should hardly expect them to put their best arguments forward against lifting the stay. They have yet to make their strongest case. Their political agenda is best served not by winning with Judge Walker and not by extending the stay. The Prop. 8 defenders win their war by getting the Supreme Court of the United States to concede (or, better, explicitly declare) that Proposition 8 is constitutional. The faster they get the Supreme Court to do that – the stronger their victory in the war. 

If the defenders of Proposition 8 presented Judge Walker a weak and losing case, full of traps for the judge, we can understand them to intend to accelerate their loss at that level, maximize the chances for Judicial error, and bring the appeal stage on faster – that would suggest that the defenders of Proposition 8 are very strategically crafty lawyers indeed. 

Can’t you imagine – as at least I can – conservative or swing justices of the Supreme Court asking: “Well, aren’t homosexual men as free as any man to marry a woman? And similarly a homosexual woman to marry a man?” And can’t you imagine a justice questioning Walker’s finding that marriage has nothing to do with reproductive capacity or intent by asking “So, then, a brother and sister of the same biological parents may marry? How about two brothers?” 

This fight is far from other and, in spite of the enthusiasm the accelerated schedule at the 9th Circuit has generated – the war will be won or lost at the Supreme Court. 

Fact Sources about Prop. 8 


Check out the “Prop. 8 Trial Tracker” [Prop.8trialtracker]. This site not only provides timely coverage, but often links to nicely presented copies of the legal documents themselves. A reporter could not ask for a handier resource. Nor could many “ordinary citizens” (as if reporters were otherwise). 


Answers? What answers? That’s my answer: there are way too few answers! Until next week, please be in touch: