Under such a scenario, unless something new develops, Proposition 8 would be invalidated, but the invalidation would come in a ruling that could never be taken up to the higher courts to set any precedent that might be applicable outside California or that might induce (or even allow) the U.S. Supreme Court to weigh in.
Directly after the celebration following Judge Vaughn Walker’s ruling, there was disappointment because the ninth circuit chose to overturn Walker’s refusal to stay the opinion. Them, it started in the Gay Press- the speculation that the case was most likely dead, because those who sought the appeal probably didn’t have standing.
An activist friend, posted one of the celebratory posts to Facebook, and I commented that it would be short-lived. This was only a holding time till the next set of legal fights. He scoffed at me- that I hadn’t read the whole article, but I had and I was right all along anyway. The ruling is far from a final chapter in the big battle for equality. The linked post is a detailed description of some of the options and what they may mean for the next phase in the battle over Marriage Equality, in California and across the nation.
I am on record (and have been criticized before) for believing that the main focus for LGBT Rights should be Federal or all state protections in employment, housing and public accommodations. Bills like ENDA must be passed because if people can be refused a job or fired for being Gay, Lesbian, Bisexual, or Transgender, there is little value in getting married, only to have that used as justification as they throw you out the door. However, the battle for Marriage Equality is a righteous battle, based on a solid foundation of real equality, and it isn’t going to be stopped or even slowed, so it is important to support it and all the while, keep fighting for other protections and rights. Additionally, these battles are inextricably intertwined as legislators don’t want to support non-discrimination fearing it to be merely a stepping stone towards marriage.
My biggest fear is that Marriage Equality will become another Roe v Wade, where decades after that ruling Abortion remains as controversial today as it ever was. Will we get a case through the Supreme Court but never see an end to the controversy? That’s my worst fear. But in rational moments, I think that once Marriage Equality is legal, and more and more same-sex couples marry, the controversy will end pretty quick. But- will it take getting to the Supreme Court?
If that happens, the findings and opinion resulting from the trial conducted by Judge Walker will also likely be erased.
That would be a tragic step, given how methodical and detailed Judge Walk was in laying down a case full of evidence that could hold up to higher levels in the appeals process.
No matter how passionate you are about Marriage Equality, it is in your best interest to understand the nuances of Walker’s decision, and what the next steps may mean. It could mean the difference between an end to Prop 8 for California, or a cornerstone for the foundation of the case that will allow Same- Sex Marriage across the entire country.