As you may know, there are three current battlefronts in the effort to repeal DOMA, the Defense of Marriage Act. One's in Congress: Senators Feinstein and Nadler have introduced a bill, The Respect for Marriage Act, that won't go anywhere in an election year. Another is in several federal courts: a series of lawsuits are underway on behalf of same-sex couples who are legally married in their home states -- Massachusetts, New York, California -- but, because of DOMA, do not have their marriages recognized by the federal government. In that second front, Obama's Justice Department this year declined to defend the law, saying that it believed DOMA to be unconstitutional.
Yesterday's news comes in the third, and splashiest, front: Perry v. Schwarzenegger (now, Perry v. Brown), the Ted Olson/David Boies lawsuit against California's Proposition 8. The backstory is incredibly tangled and technical, but here are the most important points: In 2008, California's courts opened marriage to same-sex couples. In November of that year, after thousands of California same-sex couples got married, voters passed Prop. 8, which stopped same-sex marriages in the state. In 2009, Olson and Boies sued the state in federal court, saying that excluding same-sex couples from marriage was unconstitutional. Last August, District Court Judge Vaughn Walker agreed. California's officials -- much like the Obama Justice Department -- declined to appeal the decision and defend the law.
So here's the constitutional question: If California's government declines to defend the law, is it dead -- or do the civilians who put Prop 8 on the ballot have the right to defend it in court? That question is called "standing": Who has the right to stand up for the law in court? The Ninth Circuit Court of Appeals has asked California's Supreme Court to weigh in on that question.
The buzz among those who observed yesterday's oral argument at the California Supreme Court is that the justices are leaning toward saying the anti-gay advocates should have "standing." As the Los Angeles Times put it, "During an hour of oral arguments, several justices appeared skeptical that only elected state officials may defend measures passed by voters, as gay-rights lawyers claimed." Karen Ocamb of LGBT POV wrote, "NCLR Legal Director Shannon Minter, who argued the Prop 8 cases before the California Supreme Court, is also worried about the way the hearing went, telling me: 'I was concerned by the tenor of many of the justices' questions today.'" Chris Geidner at MetroWeekly, the seemingly indefatigable gay reporter of record, wrote about it this way:
California Supreme Court Justice Ming Chin asked the lead counsel seeking to overturn the state's 2008 initiative amending the state's constitution to ban same-sex couples from marrying, ''If the governor and attorney general do not defend, then no one can defend it?''
After hedging and then getting some pushback from elsewhere on the bench, attorney Ted Olson replied, ''Yes.''
The answer might sound surprising - and the California Supreme Court justices appeared to agree.
You can watch the hearings for yourself here.
But that's not the end of the story. According to Jon Davidson, legal director of Lambda Legal, even if the CSC advises that Prop 8 backers should be able to take up the law's defense, the Ninth Circuit could disagree. If that happens, Prop 8 drops dead and California same-sex couples can marry -- in a decision that applies only to California. If the Ninth Circuit does let Prop. 8 backers take up the fight, more legal arguments lie ahead.
All this is called "civil procedure" in the law -- the rules of who gets to argue what, when, how, and why. When I took (now Dean) Martha Minow's civil procedure class at Harvard Law -- I'm not a lawyer; I had a fellowship -- she left me with the impression that she loved civil procedure because it was the alternative to military procedure. All those arcane rules and regs are a way of quelling passionately felt arguments and putting them in suits and on paper so that we don't all fight and bleed to death when we disagree. If you agree to take out your keyboard instead of your machete, the argument has to slow down -- and everyone's more likely to survive their disagreements. In this particular case, the slowdown may seem extreme; when the Ninth Circuit sent the "standing" question to the CSC, a question that it will still have to decide itself, it added at least a year of procedure before Californians would even know whether more arguments are ahead. This may seem glibly easy for me to say -- I'm married, after all -- but I'll happily take my partial liberty instead of death if it keeps this battle inside the courts and prevents me from being drowned as a witch, or any of the other historical remedies for being queer.
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