Updating the Gay Marriage Case

The California gay marriage case, about which we wrote earlier, moved on to the Ninth Circuit Court of Appeals and that court issued its first opinion last week.

It punted.

It punted the case to the California Supreme Court.

I use a football analogy in order that we may pause and consider that college football had thirty-five (35) post-season bowl games this year. Once there were only five, four of which were played on New Year’s Day. Now the games last a month or more.

Thirty-five bowl games may seem like a lot, but it actually shows a lack of imagination on the part of college football. They could almost double the number if they had “Play-Off Bowls.” For instance, the “Alamo Bowl” could play the “Independence Bowl” with the winner of that game moving on to meet the winner of the “Military Bowl”/ “Armed Forces Bowl” matchup. The “Texas Bowl” could invade the “New Mexico Bowl”, then move on to meet the “Pinstripe Bowl”. The “Humanitarian Bowl” would take on the “Fight Hunger Bowl” with the winner advancing to the “Chick-Fil-A Bowl”/ “Little Caesar’s Bowl” contest. And so on, ad infinitum. College football could last until mid-July.

End pause.

The Ninth Circuit, as I said, punted the gay marriage case to the California Supreme Court and the ironies abound. The reason assigned by the Ninth Circuit for the punt was uncertainty about whether the people supporting Proposition 8 – outlawing same-sex marriage in California – have “standing” to even be in the lawsuit. “Standing” is a legal doctrine beloved of Republicans and conservative judges because it limits, sometimes drastically, who is allowed to participate in a lawsuit.

The Ninth Circuit Courthouse in 1905

The Ninth Circuit, carefully applying the newer, more restrictive rules announced by the Rehnquist and Roberts Supreme Courts, couldn’t be sure that the anti-gay marriage people in the lawsuit had “standing” to argue in favor of the Proposition outlawing gay marriage. That question, the court decided, has to be sent to the California Supreme Court because neither the governor nor the attorney general of that state are contesting the illegality of Proposition 8. The proposition is part of California law; someone from the state government ought to be defending it, but no one is. Both the governor and the attorney-general punted, leaving only the anti-gay private citizens to defend the hapless proposition.

In other words, the conservatives in this case may not be able to proceed because conservatives in Congress and on the Supreme Court have so strictly limited access to the federal courts. If that’s the case (pun intended), then there is no one who can appeal the trial court’s ruling that Proposition 8 is unconstitutional; gay marriage would be legal in California; and the conservatives on the U.S. Supreme Court would not get to decide the issue. There would be no “Gay Bowl” v. “Anti-Gay Bowl”.

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