Question on Prop 8 and the USSC

[Veruca Salt]

If the California supremes rule against striking down prop H8, will this then be taken to the Federal supremes?

From everything I've read on the issue I really thought that it would be struck down, but now it seems that may not be the case. If the unthinkable happens, is there a plan to move to the USSC? And if it's moved to the USSC, won't that affect the whole country?

I ask because this issue is very big to me, being part of the gay community. And even though I don't live in California I feel the pain of my brothers and sisters who have had to bear the weight of this tragedy. There is a part of me though that wants to see this go to the USSC and finally have our civil rights granted at the federal level. Even then, there is another part of me that pauses when I think of the current makeup of the USSC.

And if I shouldn't have posted this as a new topic, please feel free to lock or delete, my supreme overlords mods. ;)

[HamdenRice]

1. If it is appealed to the US Supreme Court, the GLBT appellants will lose

Despite their fancy robes and all the other make believe pomp and circumstance of the Supreme Court, it's still mostly about politics, most of the time. This has not always been true, and it's less true of the lower federal courts, and it has been less true of the Supreme Court during other eras.

But right now the Supreme Court is highly politicized and divided. It's obvious that notwithstanding who has the better legal or constitutional argument, given the make up of the court, an appeal of an adverse decision in the California Supreme Court to the US Supreme Court will lose. It's a pure numbers game. Here is the current make up:

John Roberts (Chief Justice), John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito.

Roberts, Scalia, Thomas, and Alito will without question vote against any pro gay marriage decision. The four "liberals" are Stevens, Souter, Ginsburg and Breyer, but of those liberals, both Stevens and Souter were appointed by Republican presidents. Kennedy is the "swing vote" also appointed by a Republican, but he wrote the opinion in Lawrence v. Texas, which found a statute that criminalized homosexual behavior to be unconstitutional -- a very personal change for him because he had been an anti-gay justice before he wrote Lawrence and virtually apologized for his prior votes.

The problem is that while there is a bare, slim majority on the court that favors decriminalization of gay sex, it is by no means clear that the liberal justices or even Kennedy would vote in favor of a gay marriage right, and certainly not in the context of a state constitutional amendment.

There is also the terrible risk that they argue the case with very uneven chances of getting 5 votes, and then Ginsberg gets sicker and can't participate in the vote. Roberts would schedule a vote while Ginsberg is too sick to vote but before Obama has named a successor, just to ensure a bad decision.

You are correct that the only way that the court would overturn a California decision would be if they found a nation-wide Fourteenth Amendment equal protection clause right to marriage equality. They are not going to do that. One of the things that the Supreme Court has always been acutely politically conscious of is NOT making controversial decisions on rights (civil, gender, GLBT) before they think that there is majority or near majority political support for it. They will not risk making the court unpopular to enforce a constitutional right.

The GLBT legal teams know this. They will not appeal to the US Supreme Court because a negative decision will set the movement toward marriage equality back 20 years because there will then be a SCOTUS opinion "on the books" saying that there is no marriage right.

[Veruca Salt]

2. Thank you for taking the time to lay all that out!

I really appreciate it!

It's exactly what I would be afraid of happening. You put forward a very succinct reason to, in essence, hold the line. As much as it pains me to say it, as I look at the situation and know that we're second class citizens, equal rights will come but it will take time.

Thank you again! :hug:

[mitchtv]

3. My understanding is , it cannot

It is a state thing only based on the local CSC. We lose , we go to the initiative process

[HamdenRice]

4. The amendment process is a state thing; but they could appeal on federal constitutional grounds

A state constitution and state supreme court is the highest authority on state law.

But a state constitution can violate the federal constitution, for example on due process grounds. That is the one avenue of appeal.

But I seriously doubt they would try that because with the current supreme court make up they would probably lose, and that would be precedent for many years.