Upside? You say?
Well, before the standing for an appeal is decided on Wednesday, there is one good thing that came out of the entire business. The Mormons, the Roman Catholics, and homophobes of all types and sizes raised scads of money to get Proposition 8 passed.
If the appeal goes no further, or is finally lost, all that money went for naught. I would submit that the money raised should have gone for the relief of poverty, the provision of food for hungry people, or shelter for those who have no place to live, or clothing for those who now stand up in their own rags. I am not a proof texter, but Matthew 25:31-46 comes to mind.
There have been many electrons spent on the subject of the likely outcome of any appeal, and the general consensus seems to be that as the defendants (the State of California, the Governor and the Attorney-General thereof) are not appealing, and previous decisions have said that people expressing an interest or being intervenors in the case do not have standing to appeal, the appeal will most probably be denied. The irony here is that the "strict constructionists" on the Supreme Court have consistently held that intervenors do not have standing to bring or appeal a case, they themselves would have trouble allowing an appeal by anyone other than those who were defendants. "Hoist by their own petard" now, aren't they?
This has resulted in some who are in favour of upholding Proposition 8 to conclude that if the appeal is unsuccessful, a precedent wider than the state of California would be set. Of course, this would mean other states, or all states, would have to allow same-sex marriage. In their eyes, this would be less desirable than having one state (California) allow it.
Great legal minds have opined that, given the great set of statements of fact that Judge Walker has assembled, it would be difficult for the appellate courts or the Supreme Court to overturn those statements of fact. And appellate courts do not normally overturn statements of fact; they concentrate on identifying procedural errors in the original trial.
All in all, I'm cautiously optimistic that on Wednesday evening, California will be able to issue marriage licenses to same-sex couples, yet again.
The antis will now concentrate on repealing the 14th Amendment to the Constitution. They would be happy on two counts: not only could they forbid same-sex marriages again, but the ius soli—the principle that all children born on US soil are automatically US citizens—could then be invalidated. Hooray for racism and homophobia! I do not think they will be able to do it, but believe me, that's the only way they would be able to do anything about it.
Thus, in time, the legal problems that stem from marriages being valid in one state and not in another will come to the fore. Already some couples legally married in Massachusetts who find its rules on divorce (you must be resident in the state for a year to get a divorce) restrictive since they live in other states, have filed for divorce in their own home states, which do not recognise same-sex marriage. There is one case in Texas that is wending its way through the courts. This messy situation will continue on until some court rules that the part of the Constitution that mandates that each State must treat all the acts of another State as licit means that all states will at least have to treat those same-sex married couples who got married in a state where it is legal as a married couple. Thus will the barriers finally come down, as any gay couple within reach of California, Iowa, Massachusetts, Connecticut, New Hampshire, or Vermont could then marry in one of those states and return to their home state as a married couple. In ten or twenty years, more states will decide that it is less profitable to prohibit the solemnisation of same-sex marriage than to allow it, as they will be losing out on marriage license fees and the like but having to hear same-sex divorce and child custody cases and pay their own legal costs. When in some Southern states interracial marriage was illegal, those interracial marriages performed in states where it was legal were recognised by the Southern states. They only prohibited such marriages from taking place in their state.
As we say here in England, and thus the Pyramids.
The bad things that came out of Proposition 8 (beside the homophobia and the money poured into the state by conservative religious groups) include the fact that the lesbian and gay community, yet again, ate itself alive after Proposition 8 was approved. Recriminations, accusations of poor public relations and advertising, and just plain disappointed bad feelings boomeranged around the state and nationally. None of that was necessary, really. A couple of determined couples filing suit against Prop 8 seems to have carried more weight than all the advertising and public relations put forward against Prop 8.
I hope to wake up Thursday morning here in London to see pictures of jubilant same-sex couples waving their California marriage licenses while coming down City Hall steps all over the state. In time, as it has in those states which now permit it, people all over the United States, whether they are conservative or liberal, Tea Party or Coffee Party, religious, agnostic, or atheist, will to a greater or lesser extent accept that same-sex married couples are legally married as far as the civil authorities are concerned. In this way societies are changed.
Just in: The 9th Circuit has stayed the judgment until it has ruled on the appeal. So no gay marriages on Wednesday. Briefs are due in by November 1st, which I gather is relatively aggressive for a Circuit Court. I do hope that it doesn't take too long to decide—I want to see more California same-sex marriages by early next year.
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