Butch Femme Planet - View Single Post - Same-Sex Marriage Update

Soon · 08-10-2010, 08:32 AM

Here's an excerpt from Towleroad that may help clarify, iamkeri:

(the whole article is great if you wish to read more)

--------

Logistics

You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow. In a word, it won't. While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit.

The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit. Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit. That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place. Then the case may be fast-tracked to the Supreme Court.

That is, unless the issue becomes moot. How? Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot. If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing.

Some Substantive Questions

This decision is momentous. Do not forget that. Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational.

But there is a legal mine field awaiting marriage equality lawyers going forward. For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history. It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.

More specifically, strict scrutiny is a tough sell. Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review -- so-called "intermediate scrutiny" -- for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications." Whether the Court will be willing to do today what it would not do decades ago is an open question.

Therein lies the genius of Judge Walker's opinion. He touches on strict scrutiny but doesn't need it. His strategy may prove to be our saving grace in the end.

08-10-2010, 08:32 AM	#390
Soon Infamous Member How Do You Identify?: femme Relationship Status: attached Join Date: Dec 2009 Location: . Posts: 6,896 My Photo Gallery Thanks: 29,046 Thanked 13,094 Times in 3,386 Posts Rep Power: 21474858	Here's an excerpt from Towleroad that may help clarify, iamkeri: (the whole article is great if you wish to read more) -------- Logistics You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow. In a word, it won't. While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit. The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit. Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit. That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place. Then the case may be fast-tracked to the Supreme Court. That is, unless the issue becomes moot. How? Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot. If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing. Some Substantive Questions This decision is momentous. Do not forget that. Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational. But there is a legal mine field awaiting marriage equality lawyers going forward. For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history. It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees. More specifically, strict scrutiny is a tough sell. Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review -- so-called "intermediate scrutiny" -- for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications." Whether the Court will be willing to do today what it would not do decades ago is an open question. Therein lies the genius of Judge Walker's opinion. He touches on strict scrutiny but doesn't need it. His strategy may prove to be our saving grace in the end.