Thursday, August 05, 2010

Is Nothing Enough for Prop 8?

In slamming down CA's Prop 8 as doubly unconstitutional, Federal District Judge Vaughn Walker intentionally belabored the most obvious several times. The arguments from those wanting to uphold the amendment to the state constitution outlawing marriage for homosexual couples had nothing.

That, of course, is not unknown or even untenable in legal cases or legislation. What you can get by with can often be enough in the short and sometimes medium term. The only-common-sense and obvious-to-all stance invariable means there's no content or rationale.

Thus in the 138 page decision, Walker laid it all out for the certain appeal to the Ninth Court of Appeals, the federal court that covers most of the West. From there, whoever loses will try to get a hearing (like late 2011 or into 2012) will ask for a hearing by the U.S. Supreme Court. Reasonable speculation is that the Ninth will uphold Walker and the grounds for the Supremes would be that this would expand the finding of federal unconstitutionality of DOMA-style laws beyond California. In turn, that creates a conflict for the 40-plus states with some one-man/one-woman marriage definition.

That is the late-night cold sweat producer on many in the LGBT political world. If the right-leaning high court has to hurry history even just a little, they could well chicken out again, ruling in favor of ballot initiative and referendum-based discrimination, and retard marriage equality.

Meanwhile, Walker said he'd let both sides argue whether his findings should take effect immediately or be put on hold until the Ninth rules or rejects the case.

I'm finishing the decision and will spout off on it shortly.

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