This piece is the most informative I've found so far - and suggests that the Prop 8 proponents may well have no more recourse if the Ninth Circuit agrees with Walker that they have no standing to appeal. A reader writes:
As a trial attorney, I think people are smoking crack if they think the Supreme Court will approve gay marriage.
But here's the problem for the Supreme Court in overturning Judge Walker's decision (which they desperately want to do). There was almost no defense of Prop 8. Under the law Jerry Brown as state AG was supposed to mount a defense of Prop 8 which - like it or not - was the law of the state of CA. As a result Prop 8 got no real defense except from the intervenors who were a bunch of bumbling stumbling idiots. Their witnesses didn't show up, or gave confusing testimony, or were withdrawn at the last minute. There was almost no defense put on - true legal malpractice. Indigent defendants in minor cases get better defenses from public defenders.
Boies and Olson won by default. Do people really believe the most important social issue of our day is going to be decided on default, and the Supreme Court is just gonna say "ok whatever". Dream on.
My guess is the Supreme Court is going to remand this back to California federal court with instructions to the State of CA that it must mount a defense - most probably with outside counsel. Then there will be another trial, which given what we know of the 9th circuit will result in another pro-gay ruling (I hope). Then back through the appellate process and ultimately back to the SC again. Estimated time before the SC actually rules on the merits: five to six years.
And by that time public opinion will have changed (it's changing by the day), state laws will have changed, the makeup of the court may have changed. So we may have eventual victory. But the recent "victory" given to us by Judge Walker will never stand, and much as I hate to say it, probably shouldn't.
Judge Walker is saying that Prop 8 isn't even rationally related to a legitimate government purpose. But there's a wrinkle. Judge Walker and any lower court judge will be applying rational basis, true, but not any ordinary rational basis. Post Lawrence v. Texas and Romer v. Evans, rational basis has another requirement when it's applied to laws impacting sexual orientation -- in those contexts, stigmatization or moral opprobrium alone are not legitimate government purposes (though they normally are).
So, the government has to indicate some legitimate purpose other than the moral police power to apply when restricting the rights that gay Americans can enjoy. The problem is, this theory, "rational basis with teeth," is very new, and found largely in Lawrence and Romer -- opinions by Justice Kennedy. But, Kennedy giveth, and he taketh away. He's conditioned that "rational basis with teeth" test on a few preconditions. One of them is that it doesn't apply to marriage -- "an institution the law protects."
If confronted with The Marriage Question, Kennedy could happily brush aside the parts of Lawrence and Romer that elevate rational basis as applied to sexual orientation, and strike the decision down, for Walker's failure to apply ordinary rational basis. That would be disappointing. But it would also be a new beginning.
On remand I suspect Judge Walker would find Prop 8 invalid even absent Romer and Lawrence (because it clearly is). Then we're in for another round of appeals!
Trust me, I'm a lawyer :)
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