What matters now in the Prop 8 federal case?

Various legal documents will be filed and then the federal Proposition 8
case will be argued in the 9th U.S. Circuit Court of Appeals the week of
Dec. 6.

And there’s little chance California’s statewide and local LGBT activists
will talk about much else between now and then.

So what’s the Prop 8 chitchat here on the Left Coast? There are several
issues:

* The governor and attorney general and everyone else who was sued in the
federal Prop 8 case have refused to defend Prop 8 in court. Arnold
Schwarzenegger and Jerry Brown say Prop 8 is unconstitutional, that gay
and lesbian couples should be able to marry right now, and that there
should not have been a stay issued pending appeal. Because of their
refusals, Prop 8’s only defenders are the defendant-intervenors from
Protect Marriage, the folks who brought you Prop 8 in the first place. But
in what has emerged as a central question in the case, the
defendant-intervenors may not have legal “standing” to function as
defendants at the appellate level. Nobody sued these folks in this case,
and these folks have nothing to do with defending the state constitution,
of which Prop 8 is a part. That’s Brown and Schwarzenegger’s job. The 9th
Circuit has ordered these Prop 8 proponents to prove they even had
standing to file an appeal. There is at least a 50/50 chance they’ll be
kicked out of the case.

* That brings us to Imperial County, a poor, dusty place of about 167,000
people located in the desert between San Diego County and the Arizona
border. Imperial County, represented by a Christian legal group, wants to
enter the case as a real defendant so the ruling that struck down Prop 8
really can be appealed to the 9th Circuit. The 9th Circuit will make that
call as well. Many observers think it’s a long shot, but, of course,
courts are often unpredictable and the 9th Circuit might really want to
find a way for Prop 8 proponents to have their appeal of U.S. District
Judge Vaughn Walker’s Aug. 4 ruling that Prop 8 violates the U.S.
Constitution up, down and sideways.

* If the Protect Marriage folks are allowed to function as defendants,
they may attempt to sidestep Walker’s 80-some conclusions from the trial
and start from scratch, arguing that gays are hard to define and nobody
knows what makes you gay, that morality and religion provide a legally
acceptable “rational basis” for governments to discriminate against gays
in some ways, that marriage is obviously primarily about making babies the
old-fashioned way, and what have you. It will be up to the 9th Circuit to
decide how much weight Walker’s comprehensive findings on All Things Gay
carry in an appeal. Legally speaking, those are evidentiary facts. There’s
something else that can be brought into a courtroom: legislative facts.
For the sake of simplicity, a legislative fact is something of such
general knowledge that it need not be proven, or cannot be proven even
though everyone knows it’s true. “Love is real” might be an example of a
legislative fact. The Prop 8 proponents could head down this road in an
attempt to restrict marriage to opposite-sex couples, arguing, among other
things, that “marriage is between a man and a woman — period.” Of course,
in the Bible, marriage is sometimes between a man and several women. And
starting in 2001 with the Netherlands, 12 countries have decided that
marriage also is between a man and a man, and a woman and a woman. One of
those countries is the U.S. Same-sex marriage is legal in Connecticut,
Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C. “Marriage
is for procreation” could be another attempted legislative fact, despite
the fact that millions of married straight people never have procreated.

* The mainstream media have outed Judge Walker as gay, though they have
presented no evidence and Walker hasn’t said anything about his sexual
orientation one way or the other. If he’s gay, does that increase the
validity of his extensive findings on All Things Gay — i.e., he knows
what he’s talking about — or could it mean he was biased in the case from
the get-go? Does it matter if he’s gay? Should it matter? Would a straight
judge be better-positioned to restrict marriage to straight people? We
likely haven’t heard the last of the Walker/gay meme.

* The masterminds of the Prop 8 federal case, famed lawyers Ted Olson and
David Boies, always have indicated they wanted to take the case to the
U.S. Supreme Court. Others have suggested that should the U.S. Supreme
Court rule in a particular way in the case, same-sex marriage would become
legal in all 50 states. What if no one is found to have standing to appeal
the Prop 8 case to the 9th Circuit? The case would end there, Walker’s
ruling would take effect, Prop 8 would be stricken from the state
constitution, and one more U.S. state would have gay marriage: California.
Is that an acceptable ending to this super-high-profile case with
superstar attorneys who had grander designs? Most California gay leaders
say, “Yes, we’ll take it.” Some, however, would certainly see it as a limp
ending to a provocative case that was opposed, then grudgingly embraced,
by the national gay legal establishment — a case that raised gay hopes
high that we could end this whole same-sex-marriage thing in one fell
swoop. On the other hand, the case’s stopping before it starts at the 9th
Circuit would be a “safe” resolution of the matter. With each appeal,
there’s always the chance we could lose it all, California included.

The first court filing in the appeal is due Sept. 17.

By Rex Wockner