Thoughts on a California Strategy

As you’ve surely heard by now, Judge Vaughn Walker issued a ruling last week striking down California’s Proposition 8 on equal-protection grounds. You might also have heard that Argentina has legalized same-sex marriage and that a Mexican court upheld a marriage-equality law in Mexico City, rejecting a challenge by the conservative Calderon government.

Of course, all three of these victories are cause for jubilation. The wins in Mexico and Argentina are particularly welcome, insofar as they show that marriage equality isn’t just a cause of the wealthiest nations but is taking root throughout the developing world. They also show the weakening power and fading influence of Christianity in general and the Catholic church in particular – which, to no one’s surprise, continues its resolute march in the wrong direction by tenaciously opposing these decisions. Meanwhile, in California, conservatives who scream and gnash their teeth over “judicial activism”, by which they mean any court ruling they disagree with, now have a new villain: the notorious hippie liberal who first nominated Judge Walker, Ronald Reagan.

There’s little question that the relatively liberal Ninth Circuit will uphold Judge Walker’s decision, but the real question is how this ruling will fare at the Supreme Court. It’s safe to assume that there are four votes in favor of overturning the ruling no matter what happens – the anti-marriage-equality side could come into the court dressed in clown costumes, conduct their cross-examinations in mime, and deliver a closing argument consisting solely of honking a bicycle horn, and Scalia, Roberts, Thomas and Alito would vote in their favor.

But Justice Kennedy, the swing vote, is almost impossible to predict. Although he’s a conservative Catholic and refused to enforce the separation of church and state in some truly horrendous decisions, he also joined the majority in Lawrence v. Texas, the decision striking down sodomy laws as an infringement of the right to privacy. It’s just barely conceivable that he might actually rule the right way on this.

However, it’s hardly desirable to stake the fundamental freedoms of millions of Americans on the whim of a single justice; we might as well trust a coin flip to deliver equality. I think there’s a better way of defending this decision.

Whatever happens at each stage, it will take years for this case to work its way up to the Supreme Court. If Judge Walker refuses to stay his ruling, and if the Ninth Circuit upholds that, there could be tens of thousands of same-sex marriages in the meantime throughout the Ninth Circuit’s jurisdiction. By the time the case reached the Supreme Court, it would be a fait accompli. It would be so firmly established that I can picture even a conservative Supreme Court being loath to overturn it. In that case, I could imagine the court simply refusing to hear the issue, letting Judge Walker’s decision stand but not applying it to the rest of the nation.

The other possibility is that we could fight for a new ballot initiative. After all, Prop 8 passed by only a small margin, and the percentage of the electorate supporting same-sex marriage is growing every year. If California passes a new constitutional amendment repealing Prop 8 and affirming Judge Walker’s ruling, the issue would be moot. Again, this would most likely result in a split where same-sex marriage was legal in California but not elsewhere. This isn’t ideal, obviously, but it might be important strategically. Every victory we win, every legal beachhead we establish, builds momentum for the cause of equality and proves to wider society that the doomsday shrieking of the religious right is a heap of contemptible lies.

And the same holds true in Mexico City and Argentina: the more places that same-sex marriage moves into the mainstream, the more it will become familiar and accepted. More and more, people are getting the chance to see for themselves that gay and lesbian couples are normal human beings, deserving of the same rights as everyone else, and religious prejudice is weakening. Every fight we win sets the stage for further victories, and brings us ever closer to the time when true equality is the rule everywhere, not the exception.

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About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, City of Light, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • keddaw

    While you have to applaud the progress made round the world, especially in Central/South America (albeit Africa seems to be going backwards) it should not be taken as read that America will fall into line.

    If you look at gays in the military you’ll see that all (I think) of America’s allies have allowed gays into the military but the US stands alone, under-manned and under-skilled in certain areas and yet they kick out translators who are required because they prefer their relationships with someone of their own gender.

  • Thumpalumpacus

    I think Kennedy will vote to uphold this decision; it is couched in much of the language Kennedy himself has used in the past.

    Even if the decision gets overturned, such a rejection will come to be viewed, historically, as the Dred Scott of gays rights — a shameful interlude imposed by a conservative Court, and an anomaly on the road to “a more perfect Union.”

  • Stephen P

    IANAL but I think the Supreme Court will refuse to handle this one. My impression of this verdict was that it was a truly heavyweight decision. In essence not only is proposition 8 unconstitutional but it doesn’t stand a snowball’s chance in a supernova of being constitutional. If the Supreme Court overturned this, it’s hard to imagine that the result could be anything other than a huge crisis of confidence within the judicial system. Judges across the country would be wondering what on earth all their training and experience counted for.

    And I understand from a couple of comments by lawyers that there are sufficient grounds for the Supreme Court to declare quite plausibly that they do not have to hear the case. Surely they will grasp the opportunity with both hands.

  • Spanish Inquisitor

    Judges across the country would be wondering what on earth all their training and experience counted for.

    I feel the same way. It would be quite momentous for the court to ignore the fact that the state government agreed with the Plaintiffs, that a couple of bigoted nobodies had to be recruited to act as surrogate defendants to defend their bigotry, that these replacement defendants couldn’t even muster a credible defense other than “queers are yucky” (not that that’s credible), that the Judge who heard all the testimony and evaluated all of the evidence overwhelmingly found that there was, in effect, none that supported the constitutionality of Prop 8, no legitimate governmental reason whatsoever, and then have the Supreme Court say “so sorry, you’re wrong”!??

    Yeah. As a lawyer, I’d want to hand back my license.

    My take on Prop 8

  • Tim

    I would hope that if this goes to the Supreme Court that it would be ruled 9-0 as unconstitutional. Your derisive view of the court interests me, as I think most of the “conservative” justices take the words of the constitution more seriously than what social desires they have, at least when compared with the the “liberal” justices.

    On the other hand, clown costumes, mime, and a bicycle horn would be amusing…

  • Sarah Braasch

    Excellent, excellent analysis.

    The primary responsibility of the federal judiciary is to protect individual rights against the tyranny of the majority.

    The judiciary, and, in particular, the Supreme Court, is counter-majoritarian by design, not deficit.

    It serves as a crucial element of our form of government and as a check and balance against majoritarian tyranny.

    I am tired of constantly hearing the judiciary mocked and derided for fulfilling its constitutional role.

    We do not live in a majoritarian democracy. We live in a liberal constitutional democracy.

    Anyone who derides the judiciary in the US as anti-democratic needs to take a civics course.

    You might as well deride the Bill of Rights as anti-democratic.

    It is definitely counter-majoritarian, just like the judiciary.

    The genius of the American Constitution is the way in which it attempts to evenly distribute power within a tripartite fed govt and between the fed and the states. This is an effort to minimize tyranny.

    Now, the majoritarian voice is an important voice in this dialogue. And, I am not deriding it.

    But, we have to acknowledge that the beauty of our system of government is this dialogue between majoritarian and counter-majoritarian elements.

    If we lose one or the other, then it ceases to be a dialogue, and it becomes a dictatorial sermon.

    It would be an amazing victory if they simply let the 9th Circuit stand and refused certiorari.

    This is definitely a possibility.

    Usually the SC likes to wait until at least a handful of Circuits have weighed in and there exists strong disagreement amongst them as to the constitutional interpretation.

    Also the issue about the “will of the people”. The federal judiciary doesn’t concern itself with CA’s referendum process.

    State law is state law is state law. They can even go after state agents acting under “color of law”.

    If state law violates the US Constitution, then the 14th Amendment indicates that the federal judiciary has a responsibility to protect individual constitutional rights against state action to derogate those rights.

    We should be very very happy that such is the case.

    Or, does anyone else want to go back to burning witches?

  • Tim

    Sarah: We found a witch, may we burn her?

  • Thumpalumpacus

    Given some of the decisions handed down by the so-called conservatives — especially Citizens United — I cannot share your confidence in their fidelity to original intent, even were that fidelity a wise course, which is itself arguable.

  • Joel Wheeler

    Long-time lurker, new commenter; as a gay SF resident I’d like to chime in here.

    I’ve been reading analysis that suggests that defendant-intervenors (Pugno et al) may not actually have standing to appeal, even to the 9th Circuit. They are not the named defendants, named defendants have declined to defend or appeal, and apparently in order to have standing to appeal, defendant-intervenors need to be able to show that the decision harms them in some material way other than to their reputation as competent litigators. Since the meat of the decision was essentially that repealing Prop 8 harms no-one, this might be hard to show …

    Expert legal thought, anyone?

  • David

    The word of the day is “inevitable”.

  • Sarah Braasch


    That’s interesting. These types of cases often turn on issues of standing. The defendants should definitely think very carefully before appealing. If they feel certain that the 9th Circuit will uphold the District Court, it might be better for their cause if they don’t appeal.


    Yeah. I wonder why someone like Scalia even became a judge. He seems intent on undermining the role of the judiciary in American government. Which, in my opinion, is directly counter to his allegedly originalist interpretation of the Constitution.

    Again, I see the whole originalism/textualism vs. living document/teleological reading controversy to be largely a false one.

    I think there is room for all of these voices. I think the dialogue itself is the heart of the matter. It is about balance. There are advantages and disadvantages to all of the different approaches to constitutional interpretation. It is about balancing progress and social evolution with the need for social order.

    It’s just like our system of legal precedent. it can be frustrating when you want to move society forward, but, it can also be a good thing that change takes time, and that our Constitution cannot be changed on a whim.

    I think our Constitution is too difficult to change. It should be easier than it is. But, when I hear about the right wing crazies wanting to repeal the 14th Amendment, and the religious nuts wanting to codify our nation as a Xtian theocracy, then I’m happy that it isn’t so easy to change.

    But, I would like to FINALLY get the Equal Rights Amendment through. Ridiculous that women and gays are still second class citizens in the US.

    I’m so sorry. I fear I have dragged this thread off topic.

  • Sarah Braasch

    Yeah, Citizens United was a really bad call. Corporate oligarchy, anyone?

    I am concerned, despite the latest nominations being in Obama’s hands, that the current court is off balance.

  • the chaplain

    The other possibility is that we could fight for a new ballot initiative.

    I don’t like this option at all. Rights are fundamental, not optional; they’re not items to be voted up or down, in or out – they’re values (for lack of a better word) to be recognized, promoted and applied equally to all members of a civilized society.

  • Sharmin

    The ruling against Proposition 8 made me so happy. Although the progress towards equality is slow, I have hope for a better future.

  • Kennypo65

    This is a great victory for human rights. However, I hope the supremes decide not to hear the case because Scalia is a douchebag. He seems to think that the constitution is only valid when it reflects his own narrow minded opinions. This is, among other things, a privacy issue. Scalia’s record on privacy is lacking at best. He endorses drug testing for example, fourth amendment be damned.

  • Ebonmuse

    I should amend this post to point out that same-sex marriage is now technically legal in all of Mexico. Although Mexico City is still the only place where same-sex Mexican couples can marry, the court ruled that those marriages must be recognized as valid in every Mexican state.

    And I understand from a couple of comments by lawyers that there are sufficient grounds for the Supreme Court to declare quite plausibly that they do not have to hear the case. Surely they will grasp the opportunity with both hands.

    That’s certainly possible, Stephen. They’ve done this with controversial issues in the past – like Michael Newdow’s case, which they dismissed on a technicality of standing rather than address the constitutional issue. It’s probable that this is a tactic they use when they know what the correct ruling would have to be, yet they don’t want to have to issue it.

  • Rieux

    As Joel indicated, the plaintiffs (the two gay couples) in the California case are now arguing rather strenuously that the defendant-intervenors (the proponents of Proposition 8) don’t have standing to appeal to the Ninth Circuit Court of Appeals, much less to the Supremes.

    The argument is currently going on right back in Judge Walker’s court, because Walker granted the proponents a stay–as a result of which Prop 8 is still in force, in anticipation of their appeal. The plaintiffs are arguing that, because the proponents have no standing to appeal, the stay should be lifted, Prop 8 killed, and the gay marryin’ get going.

    Regardless of what Walker decides regarding the stay, the proponents will no doubt file an appeal, and the parties will fight in the Ninth Circuit over whether the proponents have standing. If the court of appeals decides they don’t, then theoretically the Supreme Court could review that decision–though I kind of doubt they would even accept cert.

    I am a lawyer, but I haven’t spent much time looking into the particular argument the plaintiffs are making. I did skim one account of their argument, though, and it looked awfully plausible.

    Anyway, the point is that there’s a very real possibility that neither the Ninth Circuit nor the Supremes will ever hear the merits of the Proposition 8 case.

  • Joel Wheeler

    Thanks, Rieux!

    I, personally, would be just fine with a limited local victory.

  • Rieux

    A bit more news: Judge Walker has now punted the standing/stay issue to the Ninth Circuit. Actually, he ruled that the Prop 8 proponents don’t deserve a stay… but then he issued a new stay to allow them to appeal that ruling.

    So. The current stay will last another week; if the proponents can’t get a new stay from the court of appeals by that time, gay marryin’ starts next Wednesday (8/18) at 5:00 P.M. Pacific time. If they can, then the court of appeals will explain how long the stay will last. (Probably for the duration of the appeal.)

    So it’s really the same legal issue regarding the Prop 8 proponents’ standing; it’s just a question of (1) which way a randomly-chosen three-judge panel from the Ninth Circuit will decide it and (2) how fast they’re willing to do it.

    I dunno; I think there’s a better-than-50% chance that wedding bells actually ring next Wednesday evening.

  • Rieux

    As for “limited local victor[ies],” I kinda wonder if a similar federal lawsuit to this one couldn’t be filed in Maine, which also “took back” gay marriage by popular vote within the last few years. Anyone know if a case like that has been filed?

  • Stephen P

    That does seem a surprising decision by Judge Walker. It was perfectly reasonable to issue a brief stay until now, to give both parties the chance to state their views on the stay. Having decided that the defendant-intervenors have no grounds whatsoever for a stay (entirely correctly as far as I can make out) he then gives them another week anyway. Has the pressure got to him just a little bit? I guess we couldn’t really blame him if it had.

  • Rieux

    I dunno, Stephen; I think he’s just trying to be as careful as possible, in order to avoid giving the proponents anything (further) they can complain about in front of a higher court.

    Now the proponents can’t whine that Walker denied them a stay; the final decision on that will come from the Ninth Circuit. If the law on stays is as clear as Walker and the plaintiffs made it out to be, the court of appeals will be no more friendly to the proponents than the trial court has been.

  • Staceyjw

    From what I’ve been hearing here in Mexico, the decision to pass SSM was political, not because of social justice (not that it matters why). The state wanted to limit the power of the Catholic Church, and pushing secular causes helps to do that.

    I don’t care WHY, I’m just impressed that they passed it. Even though the attitude here is mostly “live and let live”, I still see lots of anti-gay machismo and was a little surprised by the ruling.

  • edivimo
  • Katie M

    “The vote was scheduled for December 5 and in this highly Catholic country was expected to reject the possibility of granting same-sex couples the same rights as their married counterparts.

    But the Supreme Court ruled that the rights of minorities could not be determined by a popular vote and that the issue should be decided by the country’s lawmakers.”

    Costa Rica gets it-why don’t we?

  • Sarah Braasch

    I have been super impressed with the way progressive policies of many Latin countries lately, including in Latin and South America, as well as Spain and Portugal.

    They are leaving the US behind in their dust when it comes to women’s rights and gay rights.