drwex (drwex) wrote,

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California Uber Alles

I'm slightly surprised there hasn't been more on my LJ friends page about this decision. Maybe y'all are as busy as I am - I've started to write this piece twice and failed. I can't let it pass, though, so here are my bullet points.

1. This is pretty much how I expected the decision to come down. Given the (fundamentally broken) way things work in CA I could not see any other outcome.

2. This puts the CA supreme court in the sad-but-amusing position of saying two years ago that the right of gay people to marry was a "fundamental right" and this year saying that people can be denied those fundamental rights by virtue of a popular vote.

Think about that for about two seconds and if you don't bust out laughing you're not paying attention. A friend of mine in CA points out that his marriage to an Asian woman would have been illegal a mere 50 years ago as it would have contravened the state's then enforced anti-miscegenation laws. I suggest if you really want to mock this in the proper way that you (Californians) start a ballot campaign to bring those laws back. Because, really, you aren't defending marriage enough! And your supreme court just said that a popular vote can deny fundamental rights!

(Do you feel the stupid yet? Does it burn? Laugh, clown, laugh.)

3. Now it gets interesting. This decision creates not one, but TWO unequal classes. There are gay couples as a whole, who are treated unequally, and there are the 18,000 special case gay couples. And if you think THAT isn't grounds for a federal challenge you're still not paying attention (and probably find my LJ boring to boot). Oh, look, some big-name lawyers think this way too: http://latimesblogs.latimes.com/lanow/2009/05/new-front-in-prop-8-battle-launched-today-with-federal-suit.html

The case is basically a claim that Prop 8 violates Federal statutes with respect to equal protection and due process. The potential for hilarity here is enormous.

Option one is that the Federal court upholds Prop 8, which both says "it's OK to treat all-but-some-gays unequally" and opens the door to a SCOTUS appeal.

Option two is that the Circuit would overturn Prop 8 and the pro-8 people would appeal to SCOTUS.
Option two-A is that they'd leave the Circuit decision stand because they don't want a gay marriage case to go to SCOTUS, particularly with a new Obama appointee on the bench. That would leave the very funny situation where all states in that Circuit would have a local precedent more or less approving gay marriage, but that wouldn't apply anywhere else in the US.

Option three (the one I think is most likely) is that Prop 8 will get overturned by another ballot proposition before the case is decided at the Circuit level and the original appeal will be mooted.

I happen to think that in either case one or two, SCOTUS will refuse cert. If they're going to take a gay marriage case it'll be a direct DOMA challenge, not a silly state proposition challenge. It can't have escaped anyone's attention that a Federal decision on Prop 8 is de facto a decision on DOMA.

It's like a real-life choose-your-own-adventure script! Have a drink and laugh with me.
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