Tuesday, March 26, 2013

It was Prop 8 day at the Supreme Court

Today was Prop 8 day at the Supreme Court.  Trying to read the Tea Leaves is a useless.  We'll hear
Ed and I (and a Bear) with Mike in Park City
Mike actually performed the service and his wife stood up for us.
the result in a few months.
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The anti-Proposition 8 argument is threefold - with some unique differences between the California case and other states.
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1) California allowed Gay Marriage for 8 months before the Proposition (Prop 8) was passed.  So it wasn't the same as other states that never allowed it.  Since California had Gay Marriage and 18,000 couples were married, they have a higher bar to meet in order to allow discrimination (in marriage) against gay people.  (Allowing gay marriage had passed in the Assembly and State Senate, but was declared legal by the court before it was signed.)  ps - Eddie and I were one of the 18,000.
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2) Prop 8 was challenged in the courts and no one wanted to defend it.  The Governor (first Republican Arnold Schwarzenegger, the Democrat Jerry Brown) didn't want to defend it, they both disagreed with it.  If the state doesn't want to defend a statue, others can.  But, in order to challenge a Proposition or the overturning of a Proposition you have to show direct harm - and no one could show direct harm.  So no one had "standing" to defend Prop 8.  Ultimately the people who put it on the ballot were allowed to defend it, even though they don't have "standing" (from a harm point of view).  To allow the lower court decision to stand (which would nullify Prop 8) or to say that the defendants can't mount a legal challenge is one way that they can reinstate Same Sex Marriage in California, but not any other state.
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3) California already has a "civil partnership" law, that grants all the rights of marriage at the state level, but withholds them at the federal.  Laws defining "separate but equal", have to pass a big legal reason hurdle, and most people think it does not.  This probably will NOT be the argument that prevails, because that would force the other 8 states that have civil partnerships, but not marriage to allow gay marriage.
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Best guesses right now (although it is a sucker's game) is that the Supreme Court will throw out Prop 8 based on standing  - and/or maybe a higher bar to retroactively discriminate.