Gay Marriage on Hold in California

All of the emotions and politics aside, this is a very interesting case from a purely legal perspective.

Walkers original ruling does seem to be on very firm 14th amendment grounds. The right to marry the person of one's choosing has been declared a "fundamental right" by the Supreme Court, meaning that any restrictions on that right imposed by states must pass some very specific tests in order to be valid - something that the defendant interveners were not able to show.

The decision by the 9th circuit to stay the ruling is not surprising, as courts typically will opt to preserve the status-quo pending an appeal.

In order to prevail in this appeal, the proponents of Prop8 are going to have to show an error of law in the Circuit Court's ruling, or convince the court that the state does have a compelling interest in prohibiting same-gender marriage, a pretty tough sell given that the defendent interveners maintain that California's civil-union statute provides all of the benefits and obligations of marriage. All of this assumes that the Prop8 proponents are given standing to appeal the decision in the first place, which is very questionable from a legal perspective.

At the end of the day this will wind up in the Supreme Court, as it should. In this case the ruling will most likely hinge on Associate Justice Anthony Kennedy who despite an overall conservative philosophy, has been very strict about issues of third party standing and has a history of giving wide latitude on issues involving individual rights. He also tends to rule broadly on 14th amendment cases based on the incorporation doctrine. Reading the full text of Walker's decision gives one the feeling that it was aimed squarely at Justice Kennedy.

This will be a nail biter, but if I were forced to bet on this, I believe that at the end of it all, Proposition 8 will fall.

Celeborn

celeborn of CT 11:38AM August 17, 2010