Is Prop 8 Dead?

Yesterday, I characterized Judge Vaughn Walker’s decision to keep the ban on gay marriage in place in California for another week as “whiffing” the stay. My immediate take was that Walker had postponed giving cities across the state the green light to resume issuing marriage licenses to same-sex couples in order to give the gay marriage opponents time to find a way to keep the ban in place until the issue had been decided by the U.S. Supreme Court — a decision that nearly everyone agreed was at least two years off.

I was wrong.

This is an example of the way in which our legal system is distinct and different from our political system. Judge Walker was a Reagan and Bush I appointee, and I’m so used to Republican judges putting their thumbs on the scale for right-wing causes, that I made the assumption that that was what had happened here. It wasn’t.

Here is legal analysis from Ari Ezra Waldman, writing for Towleroad.com:

When lawyers refer to a “stay”, they mean a delay in enforcing something. Outside of one more week, which Judge Walker found necessary “to permit the court of appeals to consider the issue in an orderly manner,” the stay was denied. Prop 8 proponents had the responsibility of showing that allowing same-sex marriages would do so much harm to them that to go forward with same-sex marriage would be devastating. It’s a high hurdle to jump, and Prop 8 proponents barely got off the ground…

Prop 8 proponents had to show that their appeal had at least a “likelihood” of success. That’s a fancy way of saying that the only way a stay can be granted is if your appeal has merit. First, Judge Walker’s decision on August 4 so eviscerated every piece of the Prop 8 proponents’ case that he could not see any likelihood of success.

Second, and more importantly, Judge Walker notes that Prop 8 proponents may not even have the right to appeal. Lawyers call it “standing” [–] a way to identify those parties who have been hurt by an adverse ruling at trial and, thus, can ask a court to fix it.

That’s right. There’s a question about whether the National Organization of Marriage and the rest of the haters even have the right to seek an appeal:

Last week, Walker declared Proposition 8’s ban on same-sex marriages unconstitutional, saying it violated the gay men and lesbians’ right to equal protection and due process.

The defendants in that case were Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, but they declined to defend the law. As the losing parties, they have authority to appeal Walker’s ruling. But both Brown and Schwarzenegger hailed Walker’s decision and said they would not appeal.

“The governor supports the judge’s ruling,” spokesman Aaron McLear said Thursday.

A private group that opposes same-sex marriage, ProtectMarriage.com, defended Proposition 8 during the trial Walker held earlier this year. The group wants to appeal but may lack legal standing to do so.

To have standing in federal court, a party must show that it has suffered an actual injury, and Walker said no evidence suggests that the campaign would meet that test.

Several outside legal experts have voiced a similar opinion in recent days.

“Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction,” Walker wrote.

The first test of the standing issue could come as the groups supporting Proposition 8 go the 9th U.S. Circuit Court of Appeals seeking to keep Walker’s ruling on hold — something they vowed to do quickly.

If higher courts agree with Walker on the lack of standing, they would make no decision on the merits of the issue.

At the risk of sounding like a I’ve-got-mine-so-screw-all-y’all Republican, I hope the stay is lifted for the long term and that the ruling only applies to California.

As I said a few times back when Prop 8 passed, I know that it sounds like loser-y whining, but the ad campaign for Prop 8 conducted by NOM, the Mormons and the rest of the GOP-backed hate groups in the fall of 2008 went beyond the pale — it was a travesty of deception. Prop 8 passed because anti-gay activists were able to deceive a relatively small percentage of low-info voters who were parents of young children that unless the Prop 8 constitutional amendment passed — that if things stayed just as they were with no further legislation — California schools would be forced to “teach gay marriage” to elementary school age kids.

Yes, it made no sense. Marriage — gay or straight — was not on the curriculum of California elementary schools before Prop 8 passed. The passage has not changed the curriculum, nor would the curriculum have been changed if Prop 8 failed to pass. California teachers today are no more, or no less, able to discuss marriage, gay or straight, with tiny children than they were before Election Day 2008.

Prop 8 passed because the haters couldn’t win on the merits and so had to lie in order to win. If the stay is lifted for good, it will right that wrong in California.

It should also be pointed out that the California Legislature — that is, both houses, the Assembly and the Senate — passed laws making gay marriage legal, twice during Gov. Schwarzenegger’s term, but he vetoed the laws both times. It’s nice that now that he’s a lame duck with a 19 percent approval rating he’s finally had a come-to-Jesus moment on this issue. But really, we wouldn’t have had all this drama — the haters wouldn’t have had the talking point that gay marriage was forced on California by “activist” judges in the state Supreme Court and the rest — if he’d done the right thing to begin with.

But while I want justice on gay marriage in California, I’d rather see a delay before the issue of gay marriage is addressed by the U.S. Supreme Court in its current, GOP-dominated configuration. I’d rather wait to see if Pres. Obama wins a second term, during which, hopefully, the nation might experience the tragic loss of at least one of the right-wing activist justices appointed by Reagan, Bush I or Bush Jr.