The overturning of Prop 8: Why the fight isn't over...

[JonnyFantastico]

This is probably the closest I'm ever going to get to a political point here on GH and since it's such a hot-button topic right now; I'm going to share my thoughts as ask that you feel free to do the same.

While, without question; I am truly happy to know that this horrible proposition has been overturned, I have quite the controversial suggestion:

Can we stop the massive celebratory actions?

Not that this isn't something beautiful, but we still have so many leaps and bounds before the LGBT community is recognized as truly equal. We can dance in joy momentarily, but all this means is that WE MUST FIGHT HARDER! Do not accept an inch, my people; we must go the whole yard. Miles to go before we truly sleep in unified harmony.

And before you all knock me down in this thought, please understand this: It seems like a lot of people are conceding over this small step. There are so many other steps we have to make; many leaps and bounds before we are recognized equally. I've seen so many comments since it was overturned from other people such as, "Fuck those straights; we can get married" and I'm thinking: "Do these people read?!" The marriages are still on hold while the appeal goes through the court system and that can take a long while! Not to mention it upsets me to no end the negative strength behind these same hateful comments being thrown right back... does that make it OK? No; not at all. I understand that my community has had so much negativity thrown toward us, but to go right back and do the same thing makes us no better.

This is just the first fight of many and while it's OK to smile in knowing that we did take a major step in equality yesterday, that's all it is for now: a step. There is still a long way and many more fights that we must actively be a part of before we truly defeat all of the barriers that stand in front of us. There is nothing wrong with being happy about it; all I'm saying is that this is not the first, nor the last time we will have to stand up and demand to be counted for on the road to being equal.

 

[umpalumpa]

Yeah I read about that on queer.de It's great to see that we can always change something just when we work hard enough.

I like seeing the current development in gay rights. Of course there is still a lot to do.

 

[ritsuka]

No, clearly it isn't over yet; there will still be appeals by the mormon-funded hate groups that might go all the way to the supreme court. Personally, I'm not very confidant about the potential rulings of the same people who brought us bush v gore and citizens united, etc... There is still a fight to be won, not merely for marriage in all fifty+ states, but the wider issues of glbt cultural and legal equality, not to mention the wildly cynical way our non-democracy works where religious institutions fund ballot measures where the majority gets to vote on whether a minority has equal rights.

 

[garth33]

It seems like a lot of people are conceding over this small step. There are so many other steps we have to make; many leaps and bounds before we are recognized equally. I've seen so many comments since it was overturned from other people such as, "Fuck those straights; we can get married" and I'm thinking: "Do these people read?!" The marriages are still on hold while the appeal goes through the court system and that can take a long while! Not to mention it upsets me to no end the negative strength behind these same hateful comments being thrown right back... does that make it OK? No; not at all. I understand that my community has had so much negativity thrown toward us, but to go right back and do the same thing makes us no better.

This is just the first fight of many and while it's OK to smile in knowing that we did take a major step in equality yesterday, that's all it is for now: a step. There is still a long way and many more fights that we must actively be a part of before we truly defeat all of the barriers that stand in front of us. There is nothing wrong with being happy about it; all I'm saying is that this is not the first, nor the last time we will have to stand up and demand to be counted for on the road to being equal.

Very well said Johnny and yeah - it IS a step! IMO - God knows marriage is no magic key to happiness for anyone! (Ask 50% of hetero marriages)
If 2 people want to commit to it and each other and want to get "married" - go for it! It's 2010 for crying out loud! Deal with it....

g

 

[iSlut]

First, there's no guarantee this case will be heard by the US Supreme Court. With a few exceptions, the justices have complete discretion as to whether or not they will hear an appeal. Only about 1 percent of the cases appealed to the U.S.S.C. are heard; the rest are left standing. So, in the matter at hand, the 9th Circuit could affirm but the U.S.S.C. might opt not to grant certiorari (meaning the court will not hear the appeal, so thus the 9th Circuit decision would stand).

Second, Supreme Court decisions should not be seen as political decisions but as judicial decisions made by political appointees. There's a big difference. The left and right always try to paint justices as "liberal" or "conservative" who thus vote as if they were legislators. Such a perception over-simplifies how the court actually operates. The court is bound largely by the principal of stare decisis and, while that leaves room for interpretation, the justices do not decide matters the way a legislature would.

Citizens United is incorrectly labeled as a "conservative victory." It will help labor unions as much as it will help corporations. Both the left and the right have advantages as a result of the decision. It was a First Amendment case first and foremost, and many liberals who cherish civil liberties applauded the decision.

 

[ritsuka]

Many people have predicted this will probably go to the supreme court; I don't think I'm wrong in repeating that prediction, nor do your statements change it. Both the left and right will not receive advantages from citizens united; in fact, the real left (which is not the democratic party, which is center-right) will gain nothing at all, while big corporations will be able to buy candidates into office who will serve them. Labor unions do not have the capital that corporations do to invest in campaigns, regardless; and they endorse people who do nothing for them all the time anyway. Corporations are not persons and their buying elections is not free speech.

The current supreme court is far-right. I don't believe in the pompous hubris that these people are somehow objective; no human is. I believe we've had this discussion before, and neither of us have changed our views since then, so I'm not going to arguing with you again about it; sticking to the topic is better.

 

[topdog]

A HUGE Battle has now been won

The US Federal 9th Circuit Court has rejected the appeals of the sponsors of Proposition 8 - the law that took away gays' right to marry in California. There's a lot to discuss about the ruling, but the bottom line is that the appeals court affirmed Judge Walker's decision from a year and a half ago that Proposition 8, while it was approved by the voters, violated the rights of gay people to "equal protection under the law" and was therefore unconstitutional.

This is a big step forward, not just for people living in California, but for gays and lesbians all over the US, because a Circuit Court ruling is treated as a precedent and can be used in other cases from now on. For the first time a US Federal court has accepted that:

• denying committed gay couples their right to marry cannot encourage opposite sex marriages;
• when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
• domestic partnerships are unequal to marriage;
• as a matter of law, marriage rights do not hinge on natural procreative ability;
• and that a ban on same-sex marriage unconstitutional.

That being said, there are some limitations to be aware of. Read on if you are interested in the details.

A Narrower Conclusion than Judge Walker

Judge Walker last year seemed to push the implications of the ruling to to the most broad conclusion - that restriction of marriage to opposite-sex couples violated the US Constitution.

The judges today were very clear that they weren't going that far. They were not saying that gays had a constitutional right to marry. They said that was an important, but controversial question and they would have gone there if they had to. But they did not have to go that far to decide this particular case. They left that bigger question aside.

Instead they focused on the unique situation in California: gays had the right to marry for five months, then Prop 8 took it away. You can't take away a right from a group of people just because you don't like them. The state has to show that there is a clear public benefit to withholding the right. The Prop 8 people had no evidence in the original trial that backed up their claims that same-sex marriage was harmful to children and society. So, the judges today wanted to be clear that what they were saying is that once gay people are allowed to marry, you can't vote to take that right away just because you don't like the idea of same-sex marriage.

More Appeals
The Prop 8 people will appeal for a ruling from the entire 11 judge panel of the 9th Circuit Court. This will probably happen - but it is unlikely that they will come to a different conclusion. And they won't take a year to give their verdict - it wil just be a couple of months.

After the full 9th Circuit hears the case, it can be appealed to the Supreme Court. But, will the backers of Prop 8 take it to the Supreme Court? And if they do, will the Court take the case?

Don't assume that the Prop 8 defenders will take that step. They have lost at every stage so far. They have nothing to lose making the next appeal to the full 9th Circuit. At this point, as I said at the beginning, the case is now a federal judicial decision and can be quoted as precedent in other trials.

But, if they take it to the Supreme Court and lose on the merits of the case at that level, it will be a binding decision on all federal courts. They would have to take the risk that they would be the very case that decides that gay people must be given the right to marry. There are already a lot of anti-gay groups around the country that are plenty upset at the lousy job the Prop 8 team has done in trying to demonstrate that same-sex marriage is bad for the country. There will be a lot of pressure to bail out before they do even more damage to their anti-gay cause.

If they do appeal, my guess is that the Supreme Court will take the case, unless they feel that there is nothing new to add to the circuit courts conclusion. This is too important and high-profile to leave alone.

Still "Standing"?

However, if they do hear the appeal there is a good chance that they will not even look at the issue and throw the case out on a technicality: that the Prop 8 people do not have "standing" to appeal the judgement. You see, the original law suit was brought against the State of California, but the governor (Arnold Schwarzenegger) thought the anti-gay law was unconstitutional and refused to defend it. So the people who got Prop 8 passed, stepped in to defend their law. (And lost. Twice.) But since the state was being sued, not the Prop 8 people, the question remained - do they have the legal "standing" to defend and appeal the ruling? After all, if someone slips on my neighbor's driveway, and the victim decides not to sue, I can't step in and bring my neighbor to court. I wasn't the person who was injured. It's really none of my business in any way. So, if the State of California does not want to appeal a ruling, can a private group step in and appeal the case, even though they are not the party being sued?

It's a thorny question. On the one hand, it would seem that legally the Prop 8 group falls into the "none of my business" category. On the other hand, what kind of democracy do we have if the people vote for a law, and it is put aside simply because the governor refuses to defend it in court?

This is the question that added almost a year's delay in the 9th Circuit court coming to it's conclusion. In the end, they asked the California Supreme Court what they would do if a similar situation came up before them. The California court said that they would give the Prop 8 people the right to defend the law. The 9th Circuit today decided that they would follow the same path.

However - the Supreme Court has made a habit in the past ten years of overturning cases that they concluded did not have standing - the right to sue or appeal. They have been very consistent that unless you are the one personally harmed by the situation, you can't go to court. So far, the Prop 8 defenders have not been able to point to any harm that has come to anyone, much less themselves, when gays were allowed to marry in the state.

If the Supreme Court throws out Prop 8 based on standing, then gays in California can get married, but there is no longer a precedent to help out anyone else. Instead of being the broad conclusion that Judge Walker put forward a year ago, the whole effort will do nothing more than bring California back to the place it was before Prop 8 was passed.

Stay Tuned

So, today's ruling is a milestone - if it stands through the appeals. It's a huge step toward establishing that the right to marriage cannot be withheld from gay people at any level. And marriage represents every other right; if it becomes established then in the US any limitation can be attacked in court with the same reasoning.

 

[etilit]

this is about money...if your married than you have rites under law lol

 

[Stoic]

Second, Supreme Court decisions should not be seen as political decisions but as judicial decisions made by political appointees. There's a big difference. The left and right always try to paint justices as "liberal" or "conservative" who thus vote as if they were legislators. Such a perception over-simplifies how the court actually operates. The court is bound largely by the principal of stare decisis and, while that leaves room for interpretation, the justices do not decide matters the way a legislature would.

On that note they can overturn previous rulings too and flip flop as many times as they want cause no one polices them (or is just afraid of them) Just because they are justices doesn't mean they aren't human, I'd like to paint them that way :thumbs up:

 

[logan222]

The real problem here lies in the fact that our California electorate is still, by a majority, against recognized gay marriage. This was a very hot-button issue, and I'm sure that most of the people adamantly in favor of gay marriage voted. That just goes to show you that although we are an incredibly liberal state, people who view marriage in antiquated traditional terms outnumber the supporters of gay marriage. However, the margin is very small. There was only a 3% difference, and once the baby boomers are eventually gone or outnumbered, that shift will be gone. Our coming-of-age youth generations are obviously a lot more open-minded than the still-powerful boomers.

It's going to be hard for gay marriage to happen successfully when the majority of the electorate is still against it (and they're pretty good at mobilizing people, with empty rhetoric, and warning them that we're eventually going to start marrying dogs, robots, children, and buildings if gay marriage happens). The Internet generation is becoming harder to deceive with such empty rhetoric. Realistically, gay marriage can't harm you, and people are slowly coming into the light about that. Your children will not die because of it. Your daughters will not become lesbians just because they are taught that they can marry a "princess" if they so wish.

Pro-Prop 8-ers claim that they are against gay marriage because they want to protect the sanctity of marriage? What sanctity? The same sanctity where people are allowed to marry, divorce, and remarry as if they're just trying on new shirts to see which one fits better? The same sanctity where Armenian-American sex-tape celebrities marry and then divorce to guarantee another season of a reality TV series?

Americans, and particularly Californians, have been exposed to the sanctity of marriage being trampled on by exclusively hetero-marriages for years already! It is the people, and not the sexual orientation of the people, that ruin the sanctity of marriage. With greater knowledge of how gay marriage has no real harm to them, we are bound to make things permanent soon!