Ruling on same-sex marriage illustrates appeals process

On Wednesday, the fight for same-sex marriage passed an important milestone, but we’re far from the end of the road. Chief Judge Vaughn Walker (of the US District Court for the Northern District of California) ruled the state’s Proposition 8 as unconstitutional. In significant public cases like this, details of the process are usually lost amid the typical posturing and pontificating. There’s still a long way to go.

Courts cannot address issues or make rulings unless there is a specific case before them. That’s why the federal courts are just beginning to tackle this question. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo sued the state of California and a group calling itself “ProtectMarriage.com —— Yes on 8, a Project of California Renewal“(wow), claiming that California law (Proposition 8) violates their Fourteenth Amendment rights to due process and equal protection under the law. Judge Walker agreed.

State officials declined to defend the suit. The other defendant, “ProtectMarriage”,has appealed that ruling to the Ninth US Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. A three-judge panel will hear the case, and has ordered attorneys to file written legal briefs. They are not required to hold a formal hearing, but will probably do so.

Then the losing party can, and most likely will, appeal to the United States Supreme Court. The Supreme Court chooses whether to hear the appeal, but it usually does grant appeals in cases with such far-reaching social significance. Expect the attorneys to file many motions, petitions, and arguments on side issues. This could take another year.

In the end, if Proposition 8 succeeds, laws will remain the same and we will be arguing about this for the foreseeable future. However, if the Circuit and Supreme Courts both uphold Walker’s ruling, state laws prohibiting the marriages will be voided.

Current Pennsylvania law defines marriage as “a civil contract by which one man and one woman take each other for husband and wife”. Last year, state Senator Daylin Leach (D-King of Prussia) introduced Senate Bill 935 to the state General Assembly. The bill would redefine marriage as “a civil contract between two people who enter into matrimony”. The bill has been sitting in the Senate Judiciary Committee since then. If the federal suit succeeds, the state bill would be moot.

The plaintiffs argue that the Fourteenth Amendment’s guarantee of equal protection to all citizens includes same-sex marriage rights:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Their opponents argue that same-sex marriage is immoral and dangerous to the community. Their position is irrelevant. Judges must base their decisions on existing law. Only an activist judge would rule otherwise. And we all know how much conservatives hate those guys.

Other Proposition 8 proponents, who are not parties to this case, argue that the Tenth Amendment to the US Constitution gives marriage authority to the states. The Tenth Amendment says that powers not given to the federal government by the Constitution belong to the states, or to the people. However, this is not a Tenth Amendment issue. Because it was adopted later in time, the fourteenth specifically limits state power under the tenth.

It doesn’t matter that the majority of California voters want to prohibit the marriages. It wouldn’t matter if every voter wanted that. The voters do not have that power. According to Article VI, Clause 2, the US Constitution is the supreme law of the land. No judge, no vote, and no opinion poll can override it.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And we all know just how much those conservatives love their constitution. If Americans truly don’t want same-sex marriage, then they have to force Congress and the state legislatures to amend the constitution to say so. And that won’t happen.

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On August 6

1945 – The United States dropped an atomic bomb on Hiroshima, Japan.
1957 – Eleven peace activists were arrested at a nuclear weapons testing facility in Nevada.
1965 – President Lyndon Johnson signed the US Voting Rights Act.
2005 – Gold Star Mother Cindy Sheehan began her anti-war protest in Crawford, Texas.