Tuesday, October 27, 2020
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Appellate Court Rules to Affirm Lower Court’s Ruling (that Prop 8...

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For those who haven't already heard,
A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for a likely appeal to the U.S. Supreme Court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 - a response to an earlier state court decision that legalized gay marriage - was a violation of the civil rights of gays and lesbians.

You can read more here

There is a "however" in the ruling.  Gay marriage may not resume until the deadline for sponsors of the original bill banning gay marriage to file an appeal to the full 9th Circuit panel of judges.

The ruling is also a vindication for Judge Vaughn Walker, whom Prop 8 sponsors (and right-wing pols) claimed was "biased." The claim of bias is particularly amusing and ridiculous given that to follow that logic, one would have to say that neither gay nor straight judges could stand in judgment because of the implicit bias "inherent" in their own orientation. There would be no one left to rule, which would, come to think of it, mean that we'd just have to stay the heck out of other people's lives.  

Tangled Web May Get Unwound

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Oh, what a tangled web we weave when we want to deny a basic right to a group of citizens for no reason other than fear and prejudice. When Federal Judge Vaughn Walker ruled that California's Proposition 8, which banned same-sex marriage in that state, was unconstitutional, his ruling may just have repercussions here in Virginia. (Get ready, Cooch. This may be a biggie. Kookinelli lawsuit alert...)

In 2006 voters in the Commonwealth of Virginia approved an addition to our state constitution that not only banned same-sex marriage in Virginia but also said that civil unions were banned and that the state would not recognize any marriage or civil union of two people of the same sex granted by another state.

Virginia Constitution: Section 15-A: "That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

The only way Virginia could get around the U.S. Constitution's "Full Faith and Credit" clause, which directs states to respect the records and judicial proceedings of other states, was the passage by Congress during the Clinton administration of the Federal Defense of Marriage Act, (DOMA). The Constitution's directive to the states also says that Congress can legislate details of that directive. That was the loophole that the DOMA was driven through.

Now, if the lawsuit making its way through the courts prevails all the way to the Supreme Court on the plaintiff's behalf, both the DOMA and Virginia's constitutional prejudice will be overturned.

A political "odd couple" joined forces to argue the California case, Kristen Perry et al v Arnold Schwartzenegger et al.