There were 3 possible outcomes for this trial (from the Prop8 Trial Tracker Blog)

1. LOSE – Prop 8 is a permissible act of the people acting legislatively.
   Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
   Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
2. Win – The implementation of Prop 8 is unconstitutional.
   This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
3. WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
   This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don’t make wedding plans just yet.

We got the 3rd which is the best of the 3 and now sets the stage for the eventual appeal to the 9th circuit court of appeals.  This win, going int0 an appeal is far better than going in with a loss.  As I’ve said before, this fight is long from being over but this is a huge step in the right direction.  You can expect to see over the next several weeks cries of judicial activism on the right (never mind that this judge was appointed by a Republican president) and hollering about the “will of the people”.  This very decision however expels the idea that any majority has any right to VOTE FOR discrimination against a minority.  If the decision is affirmed, it may easily nullify every state Constitutional ban on gay marriage that exists today (Michigan’s included).

The appeal process is expected to take up to 2 years to reach SCOUTS.  By that time however, it is likely that additional states will have acted to affirm same sex marriage or begin work on repealing bans.  It is sometimes tough to say but as California does, the rest of the country tends to follow.  It is the largest state with the largest economy with some of the heaviest hitting political clout you can get.  It’s not going to be all roses and rainbows but the trajectory is clear.  Marriage will be an option for me in my lifetime if I wish to choose it and that, ultimately, is what it’s about.  My right to choose my mate, to choose the person I love.

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Recent events in California have again brought the issue of same sex marriage to the forefront of the ‘culture wars’.  2 very well known lawyers have decided that the time is right to bring a constitutional case for gay marriage to the US Supreme Court under the Due Process and Equal Protection clauses of the United States Constitution.  The lawyers you will remember from Bush vs. Gore in 2000 and both are from completely opposite sides of the political spectrum.  Each of them however believe firmly in the guarantees put out by our Constitution.  A portion of their press release is below.  Click HERE to read the full release.

Ted Olson: Thank you, Chad. Good morning everyone. Thank you for being here.

I’m Ted Olson, and I’m very, very pleased to be here with my friend and colleague, David Boies. As you heard, we are two lawyers from opposite ends of the political spectrum who have come together to support one of the most important issues of our time. The case we filed on behalf of the individuals that you see before you today is not about liberal or conservative, Democrat or Republican. We’re here, in part, to symbolize that. This case is about the equal rights guaranteed to every American under the United States constitution.

For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy.

Yesterday, the California Supreme Court said that Proposition 8 makes it okay for gay men and lesbians to be our neighbors, our friends, our doctors, our lawyers, our parents, our children, our brothers and our sisters, but they can’t get married.

The plaintiffs in this case are Americans. They work hard, they pay their taxes and they want to get married just like many of the rest of us. They simply want to live their lives without being discriminated against by their government. All they want are the freedoms to which they are entitled under the constitution and to which the rest of us so freely enjoy.

Creating a second class of citizens is discrimination, plain and simple. The constitution of Thomas Jefferson, James Madison, and Abraham Lincoln does not permit it. Our nation was founded on the principle that all Americans are created equal. This case is about ensuring that every American is treated equally under the law.

California has created a separate relationship for same sex couples called Domestic Partnerships. That is separate, and that is not equal. It is unconstitutional. Proposition 8 denies people fundamental constitutional rights.

Our courts exist to protect people when their rights are infringed. Citizens of this country, when they’re denied equal rights, turn to the courts for vindication of those rights. That is why we have them.

We’re going to court because people shouldn’t have to surrender their fundamental rights to a popular plebiscite. People should not have to beg to be treated equally, or wait for decades for popular approval to be treated equally. And when people are denied their rights, they deserve a remedy, and the courts are the most direct way to accomplish that.

Now I would like to introduce my dear colleague and dear friend, David Boies.

David Boies: Thank you Ted. It’s a pleasure to be here. I must say that being up here on a platform with Ted Olson and all these lights makes me want to urge everybody to count every vote. [Laughter.] But we are here today for something that is of equal and perhaps even greater importance. Our constitution guarantees every American the right to be treated equally under the law. There is no right more fundamental than the right to marry the person that you love and to raise a family.

The courts exist to reverse injustices. The purpose of our constitution and the purpose of our court system is to make sure that the promise of our constitution is extended to every American. That’s what this lawsuit is about.

The concept of equality, of equal rights and equal justice under the law, is not just in our constitution. I believe it is in the hearts and souls of every American. And we have tolerated discrimination and injustice in the past because we have been blinded to the fact that the person being discriminated against is simply another human being, another American. That blindness has enabled us historically not to recognize the equality of people based on sex, based on race, based on religion, and now based on sexual orientation.

This lawsuit is about the courts saying that no matter how blind people may be, the constitution guarantees that everyone deserves the equal rights that every human being is entitled to. And we go to court because that is the place that those equal rights have been established time and again over the last hundred years. Thank you.

The full press release is worth reading as it addresses some important concerns, chief among them the fact that nearly every major GLBT organization believes that now is not the right time for this case to be brought.  That there are simply not enough states on board yet and public opinion is simply not at the critical mass needed to win this sort of case.  While I’m inclined to believe that point and I’ve said before that I think the courts ought to stay out of this fight at least while there is momentum in state legislatures to change the system, I do agree with the points that these lawyers are making.  Why should I have to wait years for a civil right that has previously been acknowledged in MY constitution?  There is no question that there is a civil right to marriage in this country.  The question is whether or not that right can be denied to a specific group of people for any specific reason.  It is at this point that Americans must make a decision.  Are gay relationships similar to straight relationships or are they fundamentally different?  Is being gay at all a normal human variance (science says it is) or is being gay a choice (as religion seems to think it is).  Those questions are polar opposites but they are fundamental in framing this debate.

Anyhow, I’m not sure yet how I lean on this new federal lawsuit.  I’ll be interested in reading the briefs when they are filed to see exactly what is being challenged.  I’m inclined to believe that people should never have to wait for civil rights in this country while at the same time, this lawsuit has the potential to be lost which would mean a major set back in the gay rights movement.  We are talking years of progress that could be dismantled over night.  I’m not sure I’m ready to see all that ground lost.  Stay tuned for more posts like this.  I have very few other things going on in my life outside of work and following this issue and writing about it keeps my brain functioning.

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I made it back today after 2 days of intensive training with my company over in Wisconsin.  I’m exhausted and I have to work all weekend too.  I likely won’t write again until next week but you never know, I may be inspired by something so just stay tuned.

I found this graphic the other day and think it’s worth uploading due to the screaming the wing-nuts are up to lately.  If you have not been following, gays are now being blamed for being pissed off with the largely religious voting base that in my opinion (and many others who know a LOT more than me) has illegally stripped a suspect class of a fundamental right.  Say what you will about “constitutional” rights and activist judges HOWEVER, the CA judiciary determined that gays were a suspect class AND that marriage was a right they were entitled to (just like everyone else).  There are 3 parts to this government and in these cases the checks and balances ALL WORK exactly like they are supposed to work, it is simply that a vocal population disagrees with the judicial outcome and simply does not understand the decisions (but they sure do when judges agree with THEM now don’t they…).  A predominantly religious base did not agree with that CA decision and successfully (through ballot initiative) wrote specific discrimination into the CA constitution.  The legal arguments out there will draw this out for likely a couple of years but the outcome is pretty well decided and it is again, an outcome that God fearing bigots will not like.  In America in 2008 it is unacceptable for a majority to oppress a RECOGNIZED minority from obtaining and realizing their constitutional rights.  This is not an argument you can win with scripture and I will do my bloody best to resist being a second class citizen of this country.  Ya, OK you can have my soap box now but I intend to push you off of it again.

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