ChrisWeigant.com

Perry v. Schwarzenegger

[ Posted Thursday, August 5th, 2010 – 16:40 PDT ]

There are certain court cases everyone schooled in America at least recognizes the names of: Marbury v. Madison, Plessy v. Ferguson, Brown v. Board of Education, and, most recently, Roe v. Wade. Even if you don't remember the particular details in these cases, chances are you'll at least have heard all of these names before. And we could be on the brink of another landmark case entering this pantheon of pivotal legal decisions: Perry v. Schwarzenegger. Yes, California's "Governator" may go down in history as being on the wrong side of this case (even though he personally supports overturning Proposition 8).

But I do have to caution that there's only a chance of this happening -- and even if it does happen, it's going to take awhile. While the closest "landmark" case in American history to the subject at hand would be Loving v. Virginia, which overturned miscegenation laws and allowed interracial marriages everywhere in America, the question at this point is whether Perry v. Schwarzenegger will turn out to be this generation's Plessy v. Ferguson, or rather the Brown v. Board of Education of our era. This will depend on whether gay marriage wins or loses in the Supreme Court, of course.

Before it gets there, though, it'll have to work its way through the appeals court. This could be a very long process, as it could take as many as three steps (being heard by a single judge, being heard by a panel of 11 judges, and then being heard by the full Ninth Circuit sitting en banc). But no matter how many steps it takes, it's a fairly safe bet that the Ninth Circuit is going to uphold the initial ruling in the case. In the first place, there aren't a whole lot of grounds for appeal, really. And in the second case, the Ninth Circuit is seen as the most liberal federal appellate court in the land (although it has been stealthily moving a bit rightward, I have to admit).

The appellate process is one of double-checking the judge in the initial trial. As I said, I don't really see any grounds for appeal on technical or legal grounds here -- only fundamental constitutional grounds (which the appellate court will punt upstairs to the Supremes). Once it gets through this appellate process, almost everyone fully expects it to go to the Supreme Court immediately thereafter (no matter what the ruling by the Ninth Circuit). Whether the Supremes decide to take the case up or not is another question. They could just refuse to hear it and let the ruling stand.

But they likely will not do so, and instead will hear the case. At this point, they may even combine this case with others working their way through the federal system (challenges to the federal Defense Of Marriage Act, or "DOMA," for instance) in order to make a sweeping ruling on whether gays are to be treated as equals in this country or not. This is the sort of bedrock constitutional issue that the Supreme Court usually can't resist getting involved in, so the chances that they'll just take a pass on these cases is probably pretty low.

This will be the point when it becomes clear whether challenging these laws in federal court at the current time was a good idea or not. Plenty of gay rights activists didn't even want Perry v. Schwarzenegger to be filed, because their thinking is that they'll only get one crack at this -- and it may just be too soon to expect a Supreme Court decision in their favor. A long, long time passed between Plessy v. Ferguson and Brown v. Board of Education, in other words. If the Supremes rule against them, they may not get another chance in the courts for a generation. If the high court rules that it is reasonable for states to restrict marriage to heterosexual couples, then all of the state-level gay marriage bans (as well as DOMA) will have the official imprimatur to last for a long time.

The countervailing argument is that it's never a "good time" to fight for your rights. Gay rights activists have heard the "let's just wait a bit" theory for a long time, and they have noticed that waiting for the perfect political time to act is an exercise in futility, because it never arrives. And waiting for a different Supreme Court would take years, with no guarantee it would be any friendlier than the court is now to their cause (which is still an unknown).

Personally, I have no idea how the Supreme Court is likely to rule on this case, or on the broad subject of gay marriage. From all accounts, the plaintiffs in Perry had the superior legal team, the superior presentation, and the superior weight of logic and constitutional law on their side. That's how I've seen the ruling as well. But I am not a member of the Supreme Court (heck, I'm not even a lawyer...). And you can talk all you want about umpires calling strikes and balls, but the hard cold fact is that the Supreme Court is a political entity as much as it is a legal entity. The justices know that if they ruled gay marriage not only legal, but protected constitutionally, it is going to cause the effect of a large change in the legal landscape across the nation -- as big an effect as Roe v. Wade had. The Supreme Court could even punt, in a way -- rule on some minor technicality in the case, refuse to rule on the broader constitutional questions, and kick it back to the trial judge to begin all over again. They have even recently done so, on a number of important cases before them. Meaning the whole process could take even more time than most people are predicting right now.

Now, I certainly don't want to rain on anyone's parade. [OK, to be fair, that metaphor did pretty much demand to be written at some point in this article, didn't it? I apologize.] I celebrated the legal ruling yesterday myself, as it is rare for a judge to so clearly define an issue as one of basic rights in such forceful language. Which I happen to agree with. But I am under no illusion that the battle is won and the fight is over. Yesterday was a happy step along a very long road. But we've still got a lot of distance left to travel.

But, as I said at the beginning -- no matter what eventually happens in the Supreme Court -- the chances are good that American schoolchildren in the future will hear the names Perry v. Schwarzenegger when learning the history of our country's civil rights and important legal decisions along the way. The only question is whether they'll be learning it as a step forward, or a step back.

 

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant

 

7 Comments on “Perry v. Schwarzenegger

  1. [1] 
    Michale wrote:

    Let me state first completely and unequivocally for the record.

    I don't care if homosexual people marry. The only requirement for marriage should be that two people love each other and want to spend the rest of their lives together...

    Period..

    Having said that, I DO have two problems with this ruling.

    1. It's been noted that the Judge who decided is gay. It's been further noted by those on the Left that this has no bearing on the decision and SHOULD have no bearing on the decision..

    POPPYCOCK... (er.... no pun intended)

    If the Judge had been a raging and provable homophobic and had ruled the other way, you would bet the Left would be screaming to high heaven about the orientation and bias of the Judge...

    So, don't give me that BS about the orientation of the Judge not being relevant..

    My second caveat is more subtle and general..

    I am not sure if one sitting Judge overruling the will of the voters sets the kind of precedence in this country that we want to have..

    Again, I have no problem with gays marrying...

    However, if the voters of a state want to prevent that on moralistic reasons by a vote... Then I don't think it's my place or a judge's place to overrule that choice.

    Michale.....

  2. [2] 
    Elizabeth Miller wrote:

    Yesterday was a good day for California ... and beyond.

    I'm disheartened to note that President Obama and Vice President Biden will be on the wrong side of history and what is right if they continue to insist that they are not for gay marriage as that can only be construed to mean that they are against the principle of equality in this case.

  3. [3] 
    Michale wrote:

    I'm disheartened to note that President Obama and Vice President Biden will be on the wrong side of history and what is right if they continue to insist that they are not for gay marriage as that can only be construed to mean that they are against the principle of equality in this case.

    To be fair to Obama and Biden they have also said they are against Prop 8 as well.

    Which appears to me to be two guys who want their cake and eat it too...

    Michale.....

  4. [4] 
    Elizabeth Miller wrote:

    Michale,

    Sadly, having their cake and eating it, too is precisely what they are doing.

  5. [5] 
    Chris1962 wrote:

    Which appears to me to be two guys who want their cake and eat it too...

    LOL. Gee, y'think?

  6. [6] 
    Michale wrote:

    LOL. Gee, y'think?

    "I try not to. But you're young. Feel free to think all you like."
    -Warden Smithers, DEMOLITION MAN

    :D

    Michale.....

  7. [7] 
    dsws wrote:

    "The countervailing argument is that it's never a "good time" to fight for your rights. Gay rights activists have heard the "let's just wait a bit" theory for a long time"

    It's not a question of fighting or waiting. It's a question of small ball or swinging for the fences.

    "waiting for a different Supreme Court would take years, with no guarantee it would be any friendlier than the court is now to their cause"

    Not likely to get worse in the next two years, anyway.

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