Subscribe to Breaking NewsLowenstein: Judge orders speedy ruling on Prop 8 case
When Ted Olson and David Boies filed federal suit against Proposition 8 on behalf of their clients, the case was newsworthy for two main reasons. The two lawyers at the helm famously opposed each other in Bush v. Gore, and most of the national LGBT organizations were quick to distance themselves from the case. In fact, the Human Rights Campaign, the National Gay and Lesbian Task Force, the Gay and Lesbian Alliance Against Defamantion, Gay and Lesbian Advocates and Defenders, the National Center for Lesbian Rights, the Equality Federation, Freedom to Marry, and even the American Civil Liberties joined together to urge couples to “Make Change, Not Lawsuits,” discouraging, in particular, the case Olson and Boies were bringing.
The case did not make news because people assumed it would bring about the end of Proposition 8.
No one is saying yet that the case will be successful, but based on an action made today by the judge hearing the case, he’s at least convinced this case has serious implication.
The plaintiffs, represented by Olson and Boies were seeking an injunction on Proposition 8– which would, in effect, allow same-sex marriages to begin again immediately in California– but Judge Walker instead ordered that all parties move forward as quickly as possible toward primary resolution, rather than proceeding with arguments on injunction. “Given that serious questions are raised in these proceedings…” the Judge said, “the court is inclined to proceed directly and expeditiously to the merits of plaintiffs’ claims.”
While it is encouraging that Judge Walker intends to move quickly on this issue, it is important to remember that even a positive verdict from the District Court is not the final say on the issue. Any decision could, and likely would, be appealed to the 9th Circuit Court of Appeals. A positive result in Appellate Court could, and would, be contested to the U.S. Supreme Court.
This case is a long way from resolution, but it is encouraging to hear the Judge acknowledge the real and serious impact of Proposition 8 on Californians.
@Bill – I would like to thank you for your comments, Bill. It is refreshing to know that the audience for this site is always expanding, reaching not only the psychotic religious but also the semi-literate. And you’re absolutely right – we “fags” really do need to stop whining about marriage. We simply don’t deserve it. No matter what we do, a marriage for us can never be the sacred union it is for you heterosexuals, what with your painfully high divorce rates and quickie marriages in Las Vegas, not to mention the relatively high rates of domestic violence and adultery. Marriage is a sacred union and it should never be available for same sex couples, if for no other reason than we are entirely incapable of treating it with the same level of disdain as you heterosexuals.
Well, Bill, you really have opened my eyes. I’m a convert. Not only am I abandoning my quest for gay marriage, but I’m also taking God’s “test” and abandoning my homosexual ways. In fact, right now I’m going to go out and find the cheapest, nastiest female prostitute available, bring her back to my place and shag her tits off. Then I may go pray for my immortal soul until my knees bleed.
Oh, wait, hang on a second – I’ve just realised something. You’re a prat, aren’t you? In that case forget what I’ve just said. It’s far easier to just say “piss off you small minded bigot” and continue with my life, which unlike yours happens not to be tainted by hatred. Turd.
The train wreck is the most likely outcome. Scalia and Thomas write decisions that fly in the face of logic, truth and precedent to reach the outcome they desire. I am certain Roberts is likely no different as he used to work for Reingquist who did as Thomas and Scalia have done. There is no truth that matters to these fools and they are willing to sacrifice our Constitutional values to obtain the political outcome they desire. As much as Olsen and Boise are correct, they will win all the way up until they reach that rancid U.S. Supreme Court.
Conviction. This should proceed as we will be generations behind as it stands. Rosa Parks probably should have not been a trouble maker, if she were following the instructions of everyone else. But she didn’t. That’s brave. This lawsuit will put the cards on the table. Let’s see exactly what the highest court is made. Then we can move onward with our eyes fully open.
First, this is a Prop 8 challenge and it’s likely the courts will limit their holding to a narrow decision holding Prop 8 unconstitutional. Secondly, if the trial judge and the 9th circuit hold that Prop 8 is unconstitutional, it still could be heard by the Supreme Court. BUT, first the Supreme Court would have to agree to hear it (it takes 4 votes to agree to hear this limited appeal). Also, the two most recent gay decisions have been favorable to gays and both were written by Justice Kennedy. The first, Romer v. Evans, was assisted by Chief Justice Roberts when he was a lawyer in private practice, so it’s hard to know how he would vote. See the following article for how Roberts assisted in the favorable Romer case:
http://www.abpnews.com/index.php?option=com_content&task=view&id=611&Itemid=118
So, if the case gets to the Supreme Court, the court could issue a narrow ruling upholding Prop 8 by a 5-4 vote, or it could overturn Prop 8 by a 5-4 or 6-3 vote, or it could issue a broad ruling governing gay marriages in all the states (unlikely). Professor of Law Emeritus Don Gaudard
This could really go either way, so I’m not surprised to see all the leading LGBT groups backing away from it. First of all, I think they will win the Federal District Court, and maybe again at the appellate court level, but when it moves up the United States Supreme Court we will definitely get screwed by the 5-4 Conservative Republican majority. They will never do what is obviously right and fair when it conflicts with their inherent bias against gay & lesbian Americans. Like I said, we may win this one at first, but it will ultimately go against us, unless of course Scalia or Thomas dies or retires, and I don’t see that happening.
Said it before, say it again–go back to Scalia’s dissent on Lawrence v Texas. Scalia was the one who claimed that voiding sodomy laws against gays was essentially an endosement of gays getting married. HE put that out there, it wasn’t anybody else making a fuzzy inference. Can’t tell you how much I’d love to see that chicken go home to roost!
It’s the “wrong time”? When is the “right time”? You don’t fight to gain your rights after you already have them. It took fifty years to begin undoing Plessy v Ferguson, but it took less than twenty to undo Bowers v Hardwick. If your rights don’t exist under Federal law, they really don’t exist, so the argument about the awful consequences of losing this case are erroneous. Look at it like this: if you’re gay and married and you drive up 95 from DC to Portland you’re married but not here/maybe married but not here/not married/not married/kinda married/married but not here/married/maybe married but not here/married. Now imagine being a benefits administrator for a company headquartered in Atlanta but with major operations in each of those states. Then imagine that the company’s global headquarters are in Toronto. The status quo doesn’t work, and if some of you want to wait ’til it does, you’re gonna have to go to a voodoo priestess to stay alive that long. Grow a set and acknowledge that nothing worth having comes risk-free.
This may be as big as Brown v. Board, I hope these Lawyers are aware of the climate if this does go to the Supreme Court we may get our fondest hopes and wishes and our most horrid Nightmares
A number of you have mentioned the ‘conservative court.’ It was a conservative court that overturned the sodomy laws. Remember, we have 4 liberal justices and 4 conservative ones. And one in the middle who votes conservative most of the time, but has been consistently liberal in all the cases affecting gay rights to date.
Indeed, Justice Kennedy even wrote a rationale for overturning the sodomy laws that many legal experts claim he also laid the foundations for gay marriage in that opinion.
As it stands now, I think we’d win. With Souter retiring and Sotomayor coming in, there is a question mark in my mind. Some claim she is liberal and would vote like Souter, but she is Catholic and has voted fairly conservatively in her rulings on abortion.
If Souter were staying, I’d say go for it… With Sotomayor, I’m a bit more hesitant to see this case go to the Supremes.
I have no doubt Breyer, Ginsburg, Powell and Kennedy would vote in our favor. Scalia (the beast), Thomas, Alito and Roberts would likely vote against us (though Roberts may be a nice surprise).
That leaves Sotomayor, and where she stands is just too up in the air for me.
We may end up, indeed, with a fiasco in the Supreme Court this time ’round, but that isn’t necessarily permanent. Remember, the sodomy laws decision in the Clinton administration went against us, only to go the other way in a more conservative court.
Ultimately, as shown in the California marriage flip-flop, Gay marriage is NOT an issue for the voters. What the voters giveth, the voters can taketh away.
Our right to marry needs to be found enshrined in the constitution so that we are free from the tyranny of the majority for good (well, nothing is forever…)
Everything is stacked against this case. Many states have marriage bans, the supreme court leans conservative, California already claims to provide all the rights of marriage, there are only two plaintiff couples, and neither has been together more than 7 or 8 years. I can only hope that Olson and Boies know something that the media haven’t mentioned. We’re likely to get a decision in our favor by the district and circuit courts, followed by a Supreme Court decision against us.
Still, we have reason to hope. Obama and the dems are finally looking like they might just give us our rights. I think our best bet is to pressure and motivate them to do the right thing – overturn DOMA, pass ENDA, and so on. If congress and president repeal DOMA, the supreme court decision will have less of an effect. And a well-written, inclusive ENDA is very unlikely to be challenged in court.
In regard to Californica specifically, I have to disagree with Jon about there being too many votes, or that we’ll never see our rights without the courts. This is because in CA, 48% of the voters voted against the gay marriage ban. It’s not a stretch to imagine that number creeping up nicely, especially as old age naturally replaces social conservative voters with new, more enlightened ones.
question I have what would happen if this law suit were to be brought at the same time in all 50 states? Not just one state at a time at the same time challenging the Fed DOMA?
There has yet to be advanced one argument against marriage equality that isn’t based on religious beliefs. When looked at through a purely constitutional lens, which the justices are obligated to do, it’s a no-brainer.
I think they should drop the case as the pretty good possibility of losing to the still conservative supreme court could do lots of damage to the marriage equality movement. Do we really want to give the opposition the opportunity to pull out a supreme court ruling supporting their side? think educating the voting public, putting pressure on legislators (both state and federal) to change the laws is the better route at the moment.
It is absolutely necessary that we take this to the Supreme Court. The big LGBT groups have it backwards. You don’t win people’s hearts and minds so that they give you rights. You get the rights first (often through the Supreme Court such as with interracial marriage) and then as people get more and more used to the fact that you have the right without their “permission” and with no regards to their opinion, then slowly but surely they will edge towards more social acceptance. For example,in the SCOTUS case Loving vs Virginia (1967) interracial marriage became legalized. Not until 24 YEARS, 1991, did a majority of Americans support interracial marriage. This means that at the very earliest, (assuming that not one single person changed their stance to pro-interracial marriage upon seeing other fellow citizens be in such relations and how it’s not that bad, which is a highly improbable situation) these couples would have had to wait another 24 more years for their constitutional right to marry if they had waited for “people’s hearts and minds to change” instead of taking the rights that should have been theirs from the beginning through the courts.