Prop. 8 Hangs in the Balance

Charisma Madarang/New University Intern

On March 23, 2010, the Ninth Circuit Court of Appeals ruled that a hold would continue to be placed on same-sex marriages while Proposition 8 underwent a legal appeal process.

Proposition 8, which limits marriage to heterosexual couples, was voted and approved by 52 percent of Californians in 2008. It was later declared unconstitutional by the U.S. District Judge Vaughn Walker. Shortly thereafter, the Ninth Circuit Court of Appeals said they would put the corresponding appeal on a legal fast track.

With the appeal being deliberated by the courts, the American Foundation for Equal Rights (AFER) requested that the hold be lifted and to allow same-sex marriages to resume in the meantime. However, the Ninth Circuit decided instead to institute a “stay” (hold) on same-sex marriages while the appeal is put through further review. The three-judge panel, consisting of Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith, ruled that same-sex marriages are to be prohibited in the meantime; the request was subsequently denied.

Although there were a few lucky same-sex couples able to squeeze in their marriages before the hold was placed, there remains thousands more in California and nation-wide that are still currently being denied. The ruling has sparked anger and disappointment within the gay and lesbian community who have been waiting many years to obtain their rights to a legal marriage.

“It is decidedly unjust and unreasonable to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory comes to its final conclusion,” said AFER co-founder and president Chad Griffin.

This latest ruling has led proponents of same-sex marriage to further re-evaluate the legitimacy of American law and principles of equality, as well as forming a greater resolve to defend their entitlement to human rights.

On the other hand, there are legal scholars who say that the Ninth Circuit’s decision was a practical one, as it stayed in line with the vote of the people, as well as expressing a deference to the law by waiting for the California Supreme Court to make the ultimate decision. If the Ninth Circuit did choose to lift the “stay,” this would have directly undermined the democratic process by which the people had voiced their opinion. Under such circumstances, many legal scholars have agreed with the latest ruling.

“While everyone is eager for resolution of the case, it is important that the Court take the time necessary to fully consider and correctly apply and interpret the relevant law,” said Kevin Johnson, dean of the UC Davis Law School.

However, other prominent legal minds such as Erwin Chemerinsky, dean of the UCI Law School, appears to doubt the prevalence of Prop. 8 and whether the court’s refusal to lift the stay on same-sex marriage will have any real significance.

Had the court ruled to lift the stay, “thousands of couples would have immediately gotten married,” Chemerinsky said. “If Prop. 8 is ultimately upheld, there would be the question of what to do about those marriages.  This is simplest in terms of preserving the status quo. But as a matter of law, it is harder to justify. A stay should be issued only if the party seeking it has a substantial likelihood of ultimately prevailing, and I am skeptical of that.”

Until the California Supreme Court reaches their final decision regarding the legality of same-sex marriages, the stay will nevertheless remain in effect, preventing thousands of gay and lesbian couples in California the right to marry, as well as thousands of dollars per year in tax breaks given exclusively to married heterosexual couples.

In this way, many have interpreted the latest ruling to be one favoring traditional marriage and a temporary legal victory for supporters of Proposition 8.

“Minority groups have generally lost, with some exceptions, in the initiative process,” said Katherine Tate, professor of political science. “So while I can’t comment directly on what the Court of Appeals decision means for gays and lesbians, I would only say as a political scientist, this issue is not going away. And gays and lesbians and their liberal supporters are likely to prevail. Opinion data show that young Americans support same-sex marriage, and this is critical as it will help this minority group in battling the political process.”

Whether same-sex marriage supporters will ultimately prevail, we will not know until later this year, when the federal courts determine once and for all which group has the right to challenge the court ruling and which group does not.