So, as a lawyer and one of the leaders of my company’s LGBT group, I sometimes get asked to help explain what is happening with Prop 8. Certainly, the events of last week need explaining for many of us – me included. I was able to explain it to my kids without research. It went something like this: Another even higher court told the people who hate us that they are still wrong and Mommy and her fiancé will be able to get married soon! I cannot even use the word stepmom legitimately, yet. Anyway, I did not feel comfortable explaining last week’s events to anyone (other than my kids), until I did some research of my own and read the full court opinion. Now that I have done that, I thought I might do a little synopsis here so that I can share it with folks. If it helps you, please feel free to share it with whomever you like. The more we all understand about this, the better.
First, a procedural refresher. Now, don’t get scared. It’s just a bit of history; although I am going to skip some steps, because if I didn’t this blog would really only be suited for a law school exam, and, I would probably get something wrong (which I might do anyway). So let me stick to the basics.
Amy met Eve. Amy and Eve wanted to get married. Amy and Eve cannot get married in California because of a foul bill called Prop 8 [cue the awful, scary music that comes before someone gets killed in a slasher movie] which purported to amend the Constitution so that Eve could only marry Adam. This happened, by the way, after a California court ruled that the state could not deny Amy and Eve the right to marry – it was unconstitutional in California. This is great news for Adam and Steve and 17,999 of their closest friends who rushed to the altar or courthouse and got legally married. Victory in California, right? Wrong. Enter Dastardly Do-Wrongs and his Four Friends; let’s call them the “Haters.” The Haters [cue appropriate music, you can hear it, right?] decide that if it is unconstitutional in California to deny Amy and Eve the right to get married, let’s just change the constitution. This is very similar to playing a game on the playground with a kid who does not like that you beat them at the game you are playing and so they change the rules. That is what the Haters tried to do with Prop 8 – change the rules so that Amy and Eve can once again not get married.
Now, Amy can only marry Steve (ignore the fact that Steve is already married to Adam – they are still legally married, but none of their friends can get married). And Adam can only marry Eve. Maybe, if Amy and Adam cannot marry those that they love, no one should be able to get married! Ridiculous, right? There are plenty of folks that think marriage as a legal construct should go away entirely. Now, that is radical! At least us gays are only trying to get in on the gig, not make it go away entirely.
Amy and Eve sue Governor Terminator (once again an actor) and Attorney General Brown (now our Governor) in Federal court when they were denied a marriage license by the State. The Terminator and his main attorney hated the fact that Amy and Eve cannot get married, so they refused to defend the suit. This was great news for Amy and Eve and all of those who love them, or who don’t know them, but love equality and fairness. Hooray! No one to defend the foul Prop 8 means truth and justice wins, right? “No!,” the Haters said. We are the ones who started the foul Prop 8 in the first place, so we want to defend its dishonor.
[Then there was some weird jockeying between the Federal court and the State court, and lots of battles over “standing” to sue (aka the right to bring a case in court), judges recusing themselves, and court video being released, including an opinion on the video by the Supreme Court of the United States (or the “Supremes,” as I like to call them). None of that matters to the outcome, though. Eventually, years later, the Federal court said, “Fuck off to the Haters; Adam and Steve, you boys can get married! Right after all of the rest of the appeals, that is.”]
So, what did the Federal court say the first time around? It found that the foul Prop 8 was unconstitutional for two reasons:
1. It deprives Amy and Eve the fundamental right to marry, which is guaranteed by the Due Process Clause, and
2. It excludes Amy and Eve from state-sponsored marriage while allowing Adam and Eve (or Amy and Steve) access to that honored status, in violation of the Equal Protection Clause.
Thank you, Judge Walker! I hope your retirement is awesome. You have certainly changed history with your well-reasoned, Regan-appointed ruling. That’s right. Judge Walker is not a flaming liberal out here in California, the land of the fruits and nuts. Judge Walker is a Republican-appointed, well-respected, conservative jurist. No matter what happens down the road, Judge Walker’s decision is a landmark for the LGBT community, or I should say, the civil rights movement – all civil rights movements.
The Haters were unhappy with Judge Walker’s ruling [Surprise!], so they appealed. The Federal court of appeals (3 more judges) heard arguments in the case and just ruled – once again – that Prop 8 is illegal and unconstitutional. The Haters and the 52% of Californians that they tricked into buying their extremist crap cannot deny Amy and Eve the right to get married in California.
The Federal court made its ruling on a very limited point, that: Prop 8 singles Amy and Eve out for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without legitimate reasons. Courts like to make rulings in the most limited way, that is to say, they do not like to make sweeping statements like “that is wrong for everyone and no one can ever do it again, anywhere!” They much prefer to say something like, “in this particular instance, that statute is wrong, and it cannot be used in California in that way that it was used.”
I am glad that this is what they said because it means a couple of things. First, it means that the Supremes are less likely to hear this case on appeal. Why bother using their limited resources on a case that only affects California? The Supremes only hear 1% of the cases that are filed with them, anyway. This limited ruling in California would be easy to overlook. Second, it makes it less likely that even all of the Federal judges dealing with California and the other states in our district will want to hear another appeal. This is called an “en banc” appeal. You do not like the first ruling that one judge gave you? Appeal to a panel of three judges. What’s that? You do not like the ruling that those three judges gave you? Well, appeal to a panel of all the judges in that circuit – in California’s circuit, that would be a little less than 30 judges. Again, there are some procedural tweaks here, but they are not really key to this blog.
So, where do we stand? Can Amy and Eve start picking out china patterns, now that Prop 8 is once again illegal? No. Amy and Eve have to wait until the court orders the “mandate.” This is akin to saying that the court will wait until the Haters have again had time to appeal. I am sorry Ms. Parks, I know that the court said you have the right to ride in the front of the bus, but you will have to ride in the back of the bus a little longer – those racists in the white sheets need time to appeal.
Today, we are waiting for the Ninth Circuit to either issue an order finalizing the decision [Run and get married!] or for the Ninth Circuit to decide to have an en banc hearing – either because the Haters ask for it, or a judge or two on the circuit asks for it. If there is no en banc hearing, we are one step closer to tying the knot. But wait, the Haters have another try to keep Amy and Eve from getting married – they can ask the Supremes for help. Stop! In the name of love, before these gays get married… and what? Society as we know it ceases to function?
Basically, it could be early next year before we have the right to get married again, or it could be as late as 2014. Remember that this is now THREE courts of different judges (one state court, and two federal courts) who have found the effort to keep Amy and Eve from getting married to be illegal and unconstitutional. What the hell does a butch have to do in this state to marry her femme?!?
Enough already with the nonsense and unfairness of Prop 8. Let’s move on. It is going to happen. Gays and Lesbians are going to get married, here and in every state. All of this is just wasted time and money. And it hurts. A lot. Enough!
I want to be able to don my tuxedo. I want to be able to see my gorgeous fiancé in a stunning dress with her hair in an updo and her dress showing off her cleavage. I want to send out invitations, argue about the number of attendants, how many guests, and just how stuffy the service will be. I want to be able to get married. I am not trying to take my straight friends marriages and break them up. I am not trying to destabilize the tradition of marriage. A tradition that includes Kim Kardashian being married for 72 days. A tradition that includes people getting married on a reality TV show after a few weeks of dating. I am trying to marry the love of my life. Why on earth would anyone care to try to stop that? Why are there not crowds of people lining up to support that? Why isn’t everyone trying to get me to the church on time? Why don’t I have the soap writing on the back of my car right now?
If you are gay, tell everyone you know that you should have the right to get married – to be happy or miserable till death do you part – just like everyone else. If you are straight, tell all of your straight friends that they should not worry about gays marrying. It is not like the gays are trying to make you gay! We are trying to take ourselves off the market!
Stand up for equality. People love each other and they want to tell the world. That is what marriage does. It is butch to care about equality. It is butch to love.