Is Today's Prop 8 Decision All That Important?

For the LGBT blogosphere, Chief U.S. District Judge Vaughn Walker's decision on the constitutionality of Proposition 8 is the legal equivalent of blue balls -- there's tremendous anticipation and journalistic foreplay, but the outcome ends up being not all that important.

Both pro-Prop 8 folks and their opponents have guaranteed that they would appeal an unfavorable decision in Perry v. Schwarzenegger. Because they are suing in a U.S. District Court, the lowest federal court, the case would go to the Ninth U.S. Circuit Court of Appeals in San Francisco. Unlike the U.S. Supreme Court, these Circuit Courts must review appealed cases, known as granting a writ of certiorari. Legalese aside, there will be no meaningful resolution for California couples after today.

As Chris Geidner explains over at Metro Weekly, the impact of Chief Justice Walker's opinion will lie in the meat of the decision: the finding of facts, and the scope of the legal ruling. First, unless there are gross errors, the U.S. Appellate Court would not review the facts of the case again. The facts, or the explanation of what exactly happened to cause the lawsuit, will emerge today. If Perry v. Schwarzenegger were to go all the way to the U.S. Supreme Court, Judge Walker's same facts would guide the legal analysis.

Second, the scope of the legal analysis will be essential in future legal arguments. In the decision, the U.S. District Court will evaluate whether Proposition 8, a California State Constitutional Amendment that prohibited same-sex marriage, violates two clauses of the Fourteenth Amendment of the U.S. Constitution: Equal Protection and Due Process under the law.

Federal Courts have differing standards for laws that discriminate against groups of people. David Boies and Ted Olson, the lawyers opposed to Prop 8, have argued that the California law should be evaluated on "heightened scrutiny," a federal standard that requires a governmental action to be "substantially" related to an "important" governmental interest. In contrast, discrimination against LGBT people has been evaluated on "minimum scrutiny" in the past, a lower standard that merely requires a law 'reasonably' relate to a government interest.

This subtle distinction had lawyers abuzz at an obscure line in the recent U.S. Supreme Court case denying the right of a Christian student organization at the UC Hastings Law School to exclude gay and lesbian members. In Christian Legal Society v. Martinez, Justice Ruth Bader Ginsburg dropped an innocuous-seeming legal time bomb that could distinguish homosexuality as an immutable characteristic, rather than a group of people who happen to participate in a certain sexual act.

"Particularly in gay rights cases, the court has chosen its words with care over a long period of time," said Columbia Law Professor Suzanne B. Goldberg in a recent New York Times article. “If read properly, this decision should have an impact all over gay rights jurisprudence both because of the specific rejection of the status-conduct distinction and the shift in tone.”

Here's to hoping it does.

Photo credit: Pargon

by Adam Amir..http://gayrights.change.org