• Prop. 8 appeal could die on a technicality Wednesday, August 18, 2010

    I posted the other day about a solid bit of political/judicial analysis of California’s Proposition 8 and its prospects before the U.S. Supreme Court. But as this Reuters story points out, getting a hearing before the Supremes isn’t a sure thing. Which would be too bad.

    The issue for the Court of Appeals is whether the pro-Prop. 8 folks have legal standing to appeal U.S. District Court Judge Vaughn Walker‘s decision that the ban on gay marriage is unconstitutional, since the responsibility for defending the voter-approved measure in court should lie with the state. And Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend it.

    So if the Appeals Court rejects the appeal based on standing, and doesn’t deal with the underlying arguments of constitutionality, the ban on gay marriages would end in California. But the broader constitutional issues wouldn’t get a full airing, meaning similar bans could continue in the other states that have enacted them.

    Which, as I said at the outset, would be too bad. As the court ruled in the 1967 Loving v. Virginia case that struck down state anti-miscegenation laws, “freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” And freedom to marry a person of the same gender also should lie with the individual, and not the state. A right is a right, and cannot be applied differently because of the individuals involved.

    That’s something the Supreme Court needs to affirm for the entire country. Let’s hope the Appeals Court judges see the need to address the constitutional questions as more important than who is making the argument.

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