Random Thoughts about the Gay Marriage Appeal this week in San Francisco.

[Mike 03]

Although it has been a long time since I've posted here in DU GLBT I have been a supporter of Gay rights and Gay marriage, unconditionally. I watched the hearing this week before the SF circuit appeal and was rather shocked by the procedings. The understanding I was left with was that this three justice panel would take up to six or nine months to render an opinion. I also felt that some of the justices seemed incoherent, unintelligible and perhaps even senile.

This is so wrong. It is so obvious, based on judicial common sense, that people of the same sex should be able to marry, and that gay individuals should serve in the defense of our nation, and that we should be honoring them beyond belief for doing so.

We are so fortunate to have GLBT willing to give their lives in defense of our country.

[stopbush]

1. The judges are there to ask questions, not to give answers.

That may look incoherent, but they're playing devil's advocate with the lawyers.

It may take them a while to render a verdict. The word is that they want to keep the decision narrow so it applies only to CA. How they can do that as a Federal court, I don't know, but the idea seems to be to grant gay marriage in CA while closing the door for the pro-Prop 8 people to make this a national issue by taking it to the SCOTUS.

Considering the current make up of the SCOTUS, that strategy is a pro-gay strategy.

[FreeState]

2. keeping the decision narrow so it applies only to CA

This was hinted at by the probing questions around the fact that marriage was legal before it was taken away. If the court were to rule that a state cant take away a right that has already been granted it would limit the ruling to CA by default as no other state has taken away marriage equality once its been granted (it would however prevent states that already offer marriage from reversing themselves).

On a side note to the OP - most are expecting the decision within 2 months because this deals with constitutional rights that are being denied, the case is on a fast tract compared to most case.

[pgodbold]

3. Thanks for time line info... I had been looking for it. nt

[ShadowLiberal]

7. Even if they keep it narrow, it can open the door to more future gay marriage victories

Most may not know this, but before Separate but Equal was unanimously struck down by the supreme court it had already been torn to shreds in the lower courts.

Before then there were plenty of black high school graduates who successfully sued a university or college for the right to attend and take a certain major, even though it was an white only college/university. The reason they won was that the program they wanted to take is one that the other black only colleges/universities in the area did not offer, or were far inferior.

By the time Separate but Equal was struck down the courts were starting to use that same standard on public schools, since many states were unlawfully giving the whites only school much more funding and much better quality education then the black only schools. When the Supreme Court took the Brown vs Board of Education case they had a choice between like 5 or 6 other school systems with people arguing the same thing. They took the Brown Vs Board of Education case over the other 5 or 6 because it was a state that had equal funding for the white and black schools, in order to directly strike down the idea that separate can ever truly be equal even if given the same funding.

Even if the courts try to narrowly rule on this case, they can still open up other doors like this without intending it.

[plantwomyn]

9. What kind of contortions will they have to go through

in order to narrow the decision so it only applies to CA. As you said, this deals with constitutional rights that have been denied. That the U.S. constitution, not the state of CA constitution. How can they file a decision that states that only in CA does the U.S. constitution demand equal protection and due process? Sounds implausible.

The federal government has already taken away the right of habeas corpus, a speedy trial, search and secure e.g. wire taping without a search warrant and "sneek and peeks" just to mention a few. It would be great for the court to file a decision that a state cannot "take away a right that has already been granted", then maybe we could go after the Federal government for doing the same.

[RetiredTrotskyite]

4. Lovely...

So the rest of us in the state under their jurisdiction have to still slug this out state by state by state...

[TheWraith]

5. Limiting the decision to CA, or trying to avoid the SCOTUS, is NOT a "pro-gay" strategy.

Allow me to remind everyone, this is basically the same SCOTUS makeup that ruled on Lawrence vs Texas. If the SCOTUS actually took the case, I think our odds would be pretty good.

[Unvanguard]

6. Lawrence v. Texas is not Perry v. Schwarzenegger.

Lawrence v. Texas was the last step in a decades-long progression of getting rid of sodomy laws, which were essentially never enforced anyway. We are still at the early stages of the same-sex marriage fight: the first state legalized it only six years ago, and then only under judicial order.

[TheWraith]

8. A legal fight doesn't have to be a long war.

Hamdan vs. Rumsfeld didn't take years of laying the groundwork. A lot of causes like this take years because they're being championed by certain groups that want to find the ideal test case for overturning the law in question. I think that this case represents the best possible basis for a challenge that we're likely to see for quite awhile, based on the facts of the California situation, and the exhaustive nature of the first court ruling.

The alternative is to wait years for another one of the conservatives on the SCOTUS to drop dead and be replaced by one of ours. Or to get Congress to pass a federal law guaranteeing gay marriage, either nationwide or via full enforcement of the full faith and credit clause, which given the regressive nature of the Congress would probably take decades.