California Case on Whether Or Not a State Can Ban Same Sex Marriage to go Forward in 9th Circuit Appeals Court

Legal Technicality Ruling Clears Way for Ultimate Court Ruling

California citizens through a direct ballot initiative enacted a ban on same sex marriage.  Two diverse lawyers, one strongly conservative and one strongly not have taken the issue to court, arguing that such a ban is unconstitutional.

The state of California declined to argue for its law, leaving in limbo whether or not the opponents of same sex marriage had standing to represent the law.  Standing referred to whether or not they were a proper party to defend the law.  Now a California Court has ruled that they do have standing, and the case can proceed.

“We are delighted that the Supreme Court has clearly reaffirmed our right, as the official proponents of Proposition 8, to defend over seven million Californians who amended their own State Constitution to restore traditional marriage,’’ said Andy Pugno, general counsel for ProtectMarriage.com. The California-based group, which supports traditional marriage, is now expected to defend the ballot initiative in court.

The group defending the law has claimed what seems like a premature victory.

Pugno added that the ruling “is an enormous boost for Proposition 8” and “a huge disaster for the homosexual marriage extremists.’’

because those arguing that the law is unconstitutional want their day in court, and do not want to win on a technicality.

“The very important part of this is that it frees up the 9th Circuit to go ahead and decide the constitutional question,’’ said Theodore B. Olson, a former U.S. solicitor general who is representing Proposition 8 opponents. Olson, a longtime conservative luminary, formed an odd-couple partnership with liberal trial lawyer David Boies in taking on the ban.

This issue will almost certainly go to the Supreme Court, where there are at least four votes by Conservatives to uphold California’s law.  This is not because of the legal status, but because the Conservative judges on the Court personally oppose gay rights, and they typically rule on their personal rather than legal beliefs.  But anyone who believes that banning same sex marriage is constitution is advised to read The Dismal Political Economist’s recent post on the legality of inter-racial marriage. 

That post has a link to Loving vs Virginia, the case that provided a 9 – 0 ruling that banning inter-racial marriages was unconstitutional.  And if you don’t have time to read that post, here is a quote from the court ruling

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Mr. Olson, the Conservative arguing that banning same sex marriage is unconstitutional is defending freedom, the concept that the freedom to marry or not marry resides with the individual and cannot be taken away by government.  Conservatives are for freedom, except when it allows people to freely do what most but not all Conservatives don't want them to do.

If anyone can read that passage from a unanimous Supreme Court ruling and still feel that banning same sex marriage is constitutional, well that person has a greater ability to fabricate fantasy than the rest of us.