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Carol Forsloff - A court overturns a voter-decided initiative to prohibit same-sex
marriage, and while many folks say this will influence other states,
real change will take years some experts say.
marriage, and while many folks say this will influence other states,
real change will take years some experts say.
U.S. District Chief Judge Vaughn R. Walker ruled Aug. 4 that Prop 8,
California’s ban on same-sex marriage, is unconstitutional. But
despite celebrations on the one hand, and an appel on the other, it is
likely to take years for a final decision on the matter, according to
Susan Frelich Appleton, JD, the Lemma Barkeloo and Phoebe Couzins
Professor of Law at Washington University in St. Louis.
despite celebrations on the one hand, and an appel on the other, it is
likely to take years for a final decision on the matter, according to
Susan Frelich Appleton, JD, the Lemma Barkeloo and Phoebe Couzins
Professor of Law at Washington University in St. Louis.
There
are hoops to jump in the coming contests including a round of arguments
before the U.S. Court of Appeals for the 9th Circuit, then the Supreme
Court. Both sides have promised to take Perry v. Schwarzenegger to the
nation's top judges.
are hoops to jump in the coming contests including a round of arguments
before the U.S. Court of Appeals for the 9th Circuit, then the Supreme
Court. Both sides have promised to take Perry v. Schwarzenegger to the
nation's top judges.
But
before the U.S. Supreme Court agrees to examine the constitutionality
of bans on same-sex marriage until the issue has been decided by one or
more additional federal courts of law, which may produce different
decisions according to Appleton.
before the U.S. Supreme Court agrees to examine the constitutionality
of bans on same-sex marriage until the issue has been decided by one or
more additional federal courts of law, which may produce different
decisions according to Appleton.
“Sometimes
a division among the courts will occur, and such splits make an issue
more likely to be heard by the U.S. Supreme Court,” Appleton says.
a division among the courts will occur, and such splits make an issue
more likely to be heard by the U.S. Supreme Court,” Appleton says.
Still
decisions could become swifter but the court taking the case
immediately after the present ruling. But the decision might very well
take time because the justices might consider it important to wait as
Gregory Magarian, JD, Professor of Law at WUSTL, explains.
decisions could become swifter but the court taking the case
immediately after the present ruling. But the decision might very well
take time because the justices might consider it important to wait as
Gregory Magarian, JD, Professor of Law at WUSTL, explains.
“If
we assume that the justices know their minds on this issue, then the
justices who believe they will prevail may vote to take the case in
order to resolve the issue now, while the numbers favor their preferred
outcome,” Magarian says. “Supreme Court rules require only four votes to
take a case.”
we assume that the justices know their minds on this issue, then the
justices who believe they will prevail may vote to take the case in
order to resolve the issue now, while the numbers favor their preferred
outcome,” Magarian says. “Supreme Court rules require only four votes to
take a case.”
The issue is certainly important for the U.S. Supreme Court’s attention, Magarian says.
Opponents
say of this week's ruling that it amounts to "judicial activism"
because it overturns an action the voters decided. Magarian points out
the error of this argument by comparing the voters' opposition to
same-sex marriage to the white majority "democratically" keeping black
children in segregated schools, and the male majority "democratically"
denying women equal treatment under the law.
say of this week's ruling that it amounts to "judicial activism"
because it overturns an action the voters decided. Magarian points out
the error of this argument by comparing the voters' opposition to
same-sex marriage to the white majority "democratically" keeping black
children in segregated schools, and the male majority "democratically"
denying women equal treatment under the law.
“Often,
the people 'democratically' deny dissidents and rabble-rousers the
right to express themselves,” Magarian says. “In all of those
circumstances, we welcome the courts' intervention — at least in
hindsight. “
the people 'democratically' deny dissidents and rabble-rousers the
right to express themselves,” Magarian says. “In all of those
circumstances, we welcome the courts' intervention — at least in
hindsight. “
“One
way to analyze Proposition 8 treats it as sexual-orientation
discrimination; another way considers it as gender discrimination,"
Appleton says. "Under Proposition 8, a man can marry only a woman but
not a man, for example, so access to marriage turns on the combined
genders of the would-be spouses.
way to analyze Proposition 8 treats it as sexual-orientation
discrimination; another way considers it as gender discrimination,"
Appleton says. "Under Proposition 8, a man can marry only a woman but
not a man, for example, so access to marriage turns on the combined
genders of the would-be spouses.
"Judge
Walker’s approach promotes marriage equality and equality in marriage,
for all women and men, of any sexual orientation,” she says.
Walker’s approach promotes marriage equality and equality in marriage,
for all women and men, of any sexual orientation,” she says.
Proposition
8 is only 14 words long: “Only marriage between a man and a woman is
valid or recognized in California.” Those 14 words, however, are
controversial.
8 is only 14 words long: “Only marriage between a man and a woman is
valid or recognized in California.” Those 14 words, however, are
controversial.
Lawyers
looking at Walker’s 138-page ruling say it provides a comprehensive
look at the federal constitutional issues involved, and is sure to be
cited in legal cases to come that even go beyond the 9th Circuit.
looking at Walker’s 138-page ruling say it provides a comprehensive
look at the federal constitutional issues involved, and is sure to be
cited in legal cases to come that even go beyond the 9th Circuit.
“Judge
Walker’s thorough review of the evidence and meticulous findings of
fact leave Proposition 8 without a constitutionally permissible or
legally justifiable foundation,” Appleton says.
Walker’s thorough review of the evidence and meticulous findings of
fact leave Proposition 8 without a constitutionally permissible or
legally justifiable foundation,” Appleton says.
Appleton
is a nationally known expert on family law, and has written extensively
about non-traditional families. Magarian has a primary focus on
constitutional law in his research and teaching .
is a nationally known expert on family law, and has written extensively
about non-traditional families. Magarian has a primary focus on
constitutional law in his research and teaching .
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