Latest Twist in Prop 8 Marriage Debate

California’s Proposition 8 may not reach the U.S. Supreme Court after all.

Over 7 million California voters—a clear majority—voted in 2008 to adopt Prop. 8, an amendment to the state constitution defining “marriage” as only between “a man and a woman”.

Liberals were particularly upset that 53% of California’s Latino voters voted yes as did 70% of the state’s black voters. The liberal Democrat coalition would not survive a split between its minority and gay voter blocks. The liberal Democrat answer was a lawsuit to throw Prop. 8 out no matter what the voters said.

When Perry v. Schwarzenegger was filed, gay activists sought to replicate the success open-border activists had achieved in 1997 when a federal lawsuit (LULAC v. Wilson) invalidated Proposition 187, an initiative enacted by 59% of California voters which would have denied government benefits to those illegally in the state.

The Perry case sought to invalidate Prop. 8 on the grounds that “gay marriage” was a federal constitutional right. “Marriage” is not mentioned in the U.S. Constitution. The plaintiff cited Loving v. Virginia (1967), where the Supreme Court invalidated a state law prohibiting male/female interracial marriages. They also cited Zablocki v. Redhall, where Justice Thurgood Marshall called the right to marry of fundamental importance to all individuals, in a case where a state law prohibited a man from remarrying when he was behind in child support payments.

What these cases have to do with same sex couples having the right to marry mystifies many.

On August 4, U.S. District Court Judge Vaughn Walker ruled the California constitutional amendment unconstitutional. The judge adopted his own definition of marriage, saying, “Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.” Really, judge? Why only “two parties.” If I’m Muslim, Allah has given me the right to four wives. What about state laws against polygamy, incest, and child marriage if “free consent” is given? Are these laws unconstitutional too?

There’s much more in the judge’s opinion—but you get the idea. This opinion creates a new “right” hitherto unknown.

All sides initially assumed an appeal of the decision would ultimately be decided by the U.S. Supreme Court. Not so fast. Opponents of Proposition 8 may have found a way to stop all appeals and make Judge Walker’s decision the final word.

Professor Arthur Leonard of New York Law School, a gay rights activist who writes the widely read Lesbian/Gay Law Notes, has made a startling proposal to prevent any further judicial review of Judge Walker’s decision.

When the Perry case was first filed, Proponents of Prop. 8 successfully petitioned the court to intervene in the case as defendants, thereby becoming parties to the action with the presumed right to appeal if the plaintiffs prevailed.

Proponents of Prop. 187 in 1997 were unsuccessful in their motion to intervene in that case. When the federal trial judge ruled Prop 187 unconstitutional, Democrat Governor Gray Davis decided not to appeal the decision, making one judge’s opinion the final word—and worth more than millions of California voters. For this and a host of other reasons, Davis was later recalled from office by those same voters.

Now, Gov. Arnold Schwarzenegger faces the same decision. To appeal or not to appeal. The governor is in his last term and could face no recall. He has already praised Walker’s opinion and has called for gay marriage ceremonies to begin immediately. 

Even the liberal 9th U.S. Circuit Court of Appeals saw the injustice of allowing “gay marriages” to proceed while the validity of such marriages awaits the ruling of appeal courts, and instructed Walker to stay the effect of his ruling until the Court of Appeals hears the case.

So, will Schwarzenegger appeal the decision? Prop 8 proponents assumed they would have a right to appeal the judge’s opinion even if the governor did not appeal the case.

Enter Professor Leonard. His theory is that the proponents have no standing to appeal, citing cases where interveners in cases where state law has been ruled unconstitutional were not allowed to appeal.

Leonard is the godfather of the legal gay rights movement, having participated over the years in many cases to invalidate state sodomy laws and laws which discriminate against gays in any way. He has advised trial lawyers representing plaintiffs in the Perry case and other gay marriage cases across the country. His opinion on this appeal question carries weight.

Isn’t this special.

The liberal Democrats will rely on democratic majority rule only so long as they win elections. Losing elections, liberal Democrats turn to the courts to deny the will of the people, and to manipulate even the judicial system to insure that their agenda prevails no matter what.