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Wednesday, August 4, 2010

So What's Next For Prop 8?

Posted by Sarah Hardy on Wed, Aug 4, 2010 at 4:32 PM

As we've been cheering about on the blog all day, supporters of gay rights breathed a collective sigh of relief when Prop. 8 was overturned. So does that mean California gays can get married already? And what's next from here?

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Even as people had begun celebrating, the certainty of same-sex marriage in California remained in limbo for a few tense hours. Immediately after Chief Judge Vaughn Walker’s decision was released, it was unclear whether same-sex couples could start getting hitched right away. In the end, Judge Walker decided to go with the Prop B-backers and place a "stay" on his ruling, meaning it won't go into effect until he hears more arguments from both sides. But overall, the day was a resounding victory for those against Prop. 8.

Anti-gay marriage groups that supported Prop. 8 sensed that things weren’t going to go their way yesterday, even before Judge Walker issued his ruling. They requested that if he overturned Prop. 8, that the ban be upheld while his decision was appealed.

Judge Walker nixed that idea (after all, the whole point in overturning a ban is to actually overturn it, right?) and said:

"Because Proposition 8 is unconstitutional under both the due process and equal protection clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."

During the trial, the defendants of Prop. 8 realized that arguments based on religious rhetoric were going to get them nowhere fast.

Instead, they adopted vague, largely unsupported claims that the state had an interest in procreation and because gay people supposedly can’t procreate, the state had no interest in recognizing their marriages.

Judge Walker said in his decision that the state had no legitimate interest in excluding same-sex couples from marriage.

The case will likely be appealed in the Ninth Circuit Court of Appeals and most likely go on to the Supreme Court, no matter what the Court of Appeals ruling. This is a scary prospect, because the New York Times recently found that the current Supreme Court is the most conservative in living memory. Hopefully Justice Roberts and pals will find themselves on an off-day when they review the case, and see the arguments in favor of Prop. 8 as completely unsubstantiated bogus. Or maybe not.


Judge Walker's full decision can be found here.

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