Monday, August 16, 2010
Politics The Fight Over Same-Sex Marriage: As California's Proposition 8 Goes, So Goes Tennessee?
Posted by Bruce Barry on Mon, Aug 16, 2010 at 2:09 PM
The marriage equality legal drama playing out on the left coast this week could well determine whether the same-sex marriage ban added to Tennessee's constitution ultimately survives. Right now Californians are waiting to see if same-sex marriages there resume later this week. U.S. District Judge Vaughn Walker put his own ruling throwing out the ban (enacted as Proposition 8) on hold until Wednesday to let an appellate court weigh in on whether the ban should stay in place while opponents of marriage equality pursue a formal appeal.
Although Judge Walker invalidated only California's ban as unconstitutional, an appeal that culminates in a Supreme Court ruling upholding Walker's decision would overturn bans on same-sex marriage everywhere, including Tennessee. Is that likely to happen? Some gayphobic conservatives are fearful that it will, given two realities: First, defenders of Prop 8 offered in Judge Walker's courtroom a markedly weak case for the ban's constitutionality. Second, Prop 8sters are worried that a Supreme Court outcome will turn on the swing vote of Justice Anthony Kennedy, who has been pretty friendly to gay and lesbian rights in a couple of earlier major cases.
[Update: The Ninth U.S. Circuit Court of Appeals this afternoon granted a stay of Walker's ruling pending appeal, so no same-sex marriages in California for now. The appeal is scheduled to be heard by the Ninth Circuit on Dec. 6.]
In fact, some on the right are so alarmed at the realistic prospect of a pro-marriage-equality Supreme Court outcome that they are floating the possibility of not appealing the California decision. The logic is, essentially, concede the battle to save the war. David Barton, who heads a so-called "pro-family" organization called Wallbuilders, indicated on American Family Radio late last week that he'd rather chalk up California as a loss in the broader campaign to sustain homophobic bigotry:
"Right now the damage is limited to California only, but if California appeals this to the U.S. Supreme Court, the U.S. Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California. So there's an effort underway to say 'California, please don't appeal this. I mean, if you appeal this, it's bad for you guys but live with it, but don't cause the rest of us to have to go down your path' .... Knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision. If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment."
It turns out that the pro-Prop 8 forces may not get a bite at a successful appeal. There's a serious legal argument suggesting that their appeal could be dead on arrival because the opponents of marriage equality pursuing the appeal lack legal standing. If it plays out that way — an appeal that fails on standing grounds — then California's ban will be finished for good, but Tennessee's will stay on the books until another case winds its way through the courts.
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There's also a pair of excellent Slate articles that go into the standing issue (http://www.slate.com/id/2263943/) and the possibilities for Kennedy's eventual vote, if it gets that far (http://www.slate.com/id/2263792/).
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