The Checkered Battle over Prop 8: Another Brick in the Wall?

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California voters passed Proposition 8 with a 52% majority in November 2008. As of this past Tuesday, February 7th 2012, the Proposition 8 supporters have 14 days to ask the 9th U.S. Circuit Court of Appeals to rehear the most recent case in which California’s ban on same-sex marriage was struck down. This was the first ruling in the nation to conclude a state’s lack of justification in matters denying same-sex marriage. Hence the reason for the Circuit to align, two years later, with U.S. District Judge Vaughn Walker: Proposition 8 unconstitutionally discriminates based on sexual orientation and gender, consequently violating both due process and equal protection clauses.

It could be months, even if fast tracked, before the court decides to rehear the case, pending the answer to a hot debate until summer or fall. If the “Prop 8” proponents feel too uncertain about this outcome, the question can circumvent the Circuit and land directly in the Supreme Court’s docket. How directly exactly? A Supreme Court ruling, considering the timeline for briefs to be filed, would not take place before 2013. The stakes to this methodology would be much higher. More precisely, they would be 49 times higher as each state of the nation would turn to the Supreme Court’s decision, harmonizing their laws on the matter. Thus, if same-sex marriage bans were ruled unconstitutional, states would no longer have leeway in imposing restrictions on this “particular group” as all “rational” reasons to do so would be illegitimate. But the question is far from innovative. Since 1988, the Supreme Court has ruled 14 times that marriage “is a basic civil right which has been denied to gay or lesbian couples” (Rev. Dr. Caroline Hall, president of Integrity USA). Furthermore, it is highly likely the ensuing ruling will stay narrow-scoped. California is the only state to have granted gays marital rights and then rescind them. Thus, the California-specific scope entails the Supreme Court could uphold the decisions of the 9th Circuit without rendering the matter on a national scale. No new spice here, the nation’s Court would continue its incremental, case by case trajectory of marriage for same-sex couples.

In the midst of this hot, checkered debate, a little glitch seems to skew the objectiveness, innate characteristic of a legitimate decision, of Judge Vaughn Walker. The instigator of this wave of debate is himself, a gay man whom has been in a long term relationship. No concrete evidence of his bias has been proven. No Comment. Prop 8 backers could have had a serious advantage for setting aside Walker’s ruling on constitutional grounds, “judging” from his personal life. Now this is a matter of spicy interest: it was the first instance of an American jurist’s sexual orientation being cited as grounds for overturning a court decision. How unreasonable really is it to presume a judge cannot apply the law impartially just because he is a member of the minority group at issue in a case? I leave you all with this question in mind, the floor is open for debate…

Audrey Lhemann (Member of the Sciences Po Law Review Editorial Board)