Friday, August 13, 2010

Stay Decision Seems To Say No Appeal Possible

The wait for the decision in California's Prop 8 case was long. Months, not weeks... a long time to wait. Especially considering it has been 22 months since the fateful thing passed in the first place.

Thirteen days of actual trial ended and the case went for decision in March. It has been six years since San Francisco Mayor Gavin Newsome fired his warning shot across the bow of bigotry by issuing licenses illegally. (Though I support Mayor Newsome's actions, there is no doubt that it was not a matter legally in the jurisdiction of the city.)

I think the wait has been long enough, although I understand the wait until Aug. 18th. But beyond that? NO.

When the decision was announced a week ago, it felt like I had won a personal victory. Because although I may be straight and legally able to marry, I have far too many friends who have been treated as second class citizens simply because of the gender of the person they love.

Still, I had that joy stolen once, when the voters of California approved Proposition H8 two years ago. So while pleased, I was cautious about releasing my feelings. As I said, I felt a sense of victory. But it was equivalent to the sense of victory I suspect may have been felt by the 20th Maine as the sun slipped below the horizon on Gettysburg's second day.

The line had been held against determined attack. But another attack was coming in the morning. I waited for the decision on the stay, feeling that this would be the first salvo of the next phaze of battle. I fully expect to see the opponents of equality lining up for their version of Pickett's Charge on the battle line of the 9th Circuit Court of Appeals.

I did expect the opponents to be repulsed. I did not expect them to be so firmly defeated.

When I first read the stay on the decision, I was amazed. A few days before, I gaped at the strength of the legal language from Judge Walker. Legal decisions are written in shades of gray, despite the tendency of laypeople to think of a court's judgment as black and white.

Judge Walker punished the supporters of Prop H8. He paddled their behinds and sent them to the principal's office. He gave them not just an F, but an incomplete. He did everything but call their mother's and tell on them. I suspected the stay would be calmer, although I certainly expected it to be in our favor. It is not calm.

My reading (and the Judge has since confirmed that what I read was what he intended) is that not only is the stay not granted but also that, since they were not actual parties to the suit, the proponents of H8 have no right to appeal.

That right lies with the named defendants, The State and Attorney General of California. Both Gov. Schwarzenegger and Jerry Brown have indicated they do not believe in the suit and shall not appeal. Indeed, the Governator twice vetoed bills from the legislature with a stated position that he felt this decision belonged in the arena it now occupies.

Hell, they refused to even defend the suit in court back in January. Imagine this for a second from a different perspective. Someone sues you and your response when called to court is to tell the judge that's alright, you don't need to come. Go ahead and rule the way you want. Can you imagine doing such a thing personally? It's asinine. But of course, so was Prop. 8.

The question of whether or not the Judge should have allowed others to speak in the trial on behalf of the Proposition may be the only thing that allows this case to be appealed. That and the weight of precedence. No court wants to establish a principal of law that could, under other circumstances, be used to further quite a different agenda.

Judge Walker was quite clear. To paraphrase, he said, "You bigots weren't the ones being sued to begin with, but I let you shoot your mouth off because it seemed like I needed to hear if you had a valid argument on behalf of 52% of those who voted in November 2008. You wasted my time and you used my court as a forum to expose your biased and selfish point of view. Enough. You hurt these people and I will not allow it to continue."

And then, in very unusual legal fashion, he slapped them down twice.

Wedding bells begin to ring on Wednesday.

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