One of the interesting things about the Prop 8 trial was that the defenders of Prop 8 were so ill-prepared for their court case. The Prop 8 defenders only called 2 witnesses and one of the witnesses had their testimony completely ignored. The opponents of Prop 8 called many, many witnesses to demolish the “scientific” opposition to same sex marriage – like the myths that same sex couples are bad for children. The trial was a farce from the start because the arguments that the Prop 8 defenders had were 1) will of the people, 2) tradition and 3) religion. However, to win a case you need good lawyers and Ted Olson shows why he’s one of the best:
Wallace asked Olson to identify the right to same-sex marriage in the constitution and wondered why “seven million Californians” “don’t get to say that marriage is between a man and a woman.” Olson replied that the Supreme Court has ruled that marriage was a fundamental right and pointed out that the constitution made no explicit mention of interracial marriage either. He stressed that under our system of government, voters can’t deprive minority groups of their constitutionally guaranteed protections and reminded Wallace that in the 1960s, “Californians voted to change their constitution to say that you could discriminate on the basis of race in the sale of your home; the United States Supreme Court struck that down.”
When Wallace pressed the point further, likening same-sex marriage to abortion and noting that “the political process in the case of same-sex marriage was working” since states had been deciding the issue on a “state-by-state basis,” Olson asked Wallace how he would like it if Fox News’ right to free speech was decided in such a manner:
OLSON: Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundament constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.
Here’s some interesting speculation from Pam’s House Blend, is the Prop 8 case actually over? Both the California AG Jerry Brown and California Governor Arnold Schwartzenegger have asked Judge Walker to lift the stay on the ruling and allow same sex marriages to proceed:
In a motion filed late yesterday, lawyers for the plaintiff couples and the City of San Francisco argued that marriages should be allowed to begin immediately, rather than be stayed pending appeal. One of their arguments was that an appeal might never happen. They argued this because the governmental defendants – the Governator and the once (and future!) Governor Moonbeam – are not appealing and the Yes on 8 proponents – who were let in at the trial court as intervenors – don’t have standing to appeal.
In a nutshell, from a non-lawyer, it seems that Justice Ginsburg, in the opinion to Arizonans for Official English v. Arizona (which was decided on other grounds), expressed “grave doubts” as to whether the proponents of a ballot measure had standing to appeal a federal court ruling in the absence of governmental actors making an appeal. In other words, the Yes on 8 folks might not have the right to appeal Walker’s decision.
This, apparently, is why Imperial County tried to get in on the case in the eleventh hour – the haters realized that without a government entity willing to appeal, they could be shit out of luck. But Walker shut them down, both saying they didn’t have a good reason to be let in and that they waited until after the deadline, so they really are SOL. So unless Schwarzenegger or Jerry Brown have a sudden change of heart and decide to appeal the ruling (or Imperial County convinces a higher court that they really should be in on the case) Walker’s ruling could be the final word.