Prop 8 Case Back on the Fast Track

Week in Review
November 23, 2011
BY ANN ROSTOW


Prop 8 Case Back on the Fast Track

As you surely know by now, the California Supreme Court ruled Thursday that proponents of an initiative have the standing to defend their ballot measures in state court when the state declines to do so. The decision means that the Prop 8 case now returns to the U.S. Court of Appeals for the Ninth Circuit, where the judges will almost certainly agree to recognize Prop 8 proponents in federal court.

The Ninth Circuit wasted no time in asking the parties to the Prop 8 case to file short (less than 20 pages) briefs on the implications of the California ruling within 14 days. In a one-paragraph order, the three-judge panel said no reply briefs or additional papers would be accepted, so it looks as if these guys are ready for quick action.

Although it’s possible that the Ninth Circuit could decide that Prop 8 proponents lack standing to appeal their lower court defeat in federal court, it’s highly unlikely. The California justices based their decision on the fact that both the governor and the attorney general refused to defend Prop 8, giving them an unofficial veto over the will of the people. In theory, the justices decided, state officials who dislike this or that ballot measure could effectively kill a measure after the fact simply by refusing to defend a court challenge.

Without getting into the court’s wisdom, or lack of same, let’s just note that the U.S. Supreme Court has recognized initiative backers for the purpose of federal law in the past, if and when they had the right under state law to represent the state. Prior to last Thursday, it was unclear if this was the situation in California, and indeed, the California Supremes could have awarded standing under a different legal theory.

Now, however, it looks as if the question of federal standing is effectively resolved, and it doesn’t sound as if our side wants to continue the standing battle through the appellate courts. Instead, we’re hearing comments about how everyone is looking forward to decision on the merits of the case. And you have to admit, even though the standing ruling is a technical “defeat” for our side, most of us are anxious to pursue the real question of whether California voters have the (federal) constitutional right to strip gay couples of their access to marriage.

By the way, last week I wrote that the original trial ruling in our favor was handed down in August of 2009, when in fact it was August of 2010. I’m sorry. All I can say is that it seemed like such a long long long time ago, I added a year to the delay without even stopping to think about it.

But look, things are moving again! And it’s hard (for me) to calculate just how quickly our case could play out. We’ve already had oral arguments on the merits of the case before the Ninth Circuit. Those took place last January or February. I forget. So will the Ninth Circuit hold additional arguments? Or will they cut to the chase and deliver a ruling on the merits at once? After all, they’ve had nearly a year to think about it, so for all we know they might have written out their main opinion in advance.

Alternatively, they might have sat on their hands throughout the spring and summer. I don’t know. But at least we may avoid another year of determining whether or not the Prop 8 backers have standing.

Even if the Ninth Circuit rules on the merits next month, we’re still facing appeals. The loser can appeal to the full court of the Ninth Circuit, or they can appeal directly to the U.S. Supreme Court. The latter course of action could, of course, be risky for our side. While it’s quite possible that the High Court could strike the constitutionally flawed Defense of Marriage Act, it’s far less certain that five justices would strike amendments like Prop 8 and thereby legalize same-sex marriage overnight throughout the nation.

But the Prop 8 case could also be decided on narrow terms. Federal appellate courts could say that voters may not strip existing rights from a class of citizens without a compelling non-discriminatory reason, thereby limiting the impact of the ruling to California (and maybe Maine).

Oh, it’s all so complicated! And there are other complexities that I haven’t even broached. The Ninth Circuit is also going to decide whether or not Judge Vaughn Walker should have recused himself from the lower court trial because of his sexual orientation. The answer to that will be no, and this distraction has been consolidated into the main case. Then there’s the question of whether or not trial video transcripts should be made public. I think a hearing is set for early December on that issue. Also, there’s the related matter of whether or not Prop 8 proponents have a right to anonymity. The answer to that last one is also no, but I’m not getting into the details. For heaven’s sake we’ve had enough of this, don’t you think? It’s almost Thanksgiving!
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Cain Train Off the Rails

While I was blindly groping through the Internet for Prop 8 details I encountered a comment from Herman Cain, who was asked what he would do if the U.S. Supreme Court ruled that the Defense of Marriage Act was unconstitutional. Herman’s reply? He said he would work to “overturn” the High Court’s decision.

Say what? Does this moron have any idea how the judicial branch operates?

And why hasn’t this latest false step garnered any media attention? I suppose the media has basically written him off and disconnected his spotlight. Frankly, I can’t argue with that decision.

I’m not in the mood for actual news today. Instead, let me tell you that I have discovered my new political home thanks to an article in my favorite newspaper. (The Grey Lady of course.)

I’m now a member of the Cocktail Party! Try Cocktails for America dot com for details. The Cocktail Party is sort of joke, of course. But sort of serious. What does a cocktail represent after all? It represents a timeless moment that marks the end of work and the beginning of the evening. It’s a social phenomenon. If you’re by yourself, you’re not going to fix a “cocktail,” let alone get out the nuts or olives. It’s a convivial moment. It represents civility and fellowship, qualities that in today’s political circus seem in short supply.

Most of all, a cocktail changes one’s perspective. Gone are the tedious details of a quotidian workday. In their place, the languorous arcs of reflection and goodwill. Won’t you join me?
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Equality No Longer Matters

Let’s see. Do you remember the big roll out of “Equality Matters,” the GLBT offshoot of Media Matters? Looks like that’s all she wrote for the short-lived communications think tank. It’s two main leaders, Richard Socarides and Kerry Eleveld are moving on to other activities, and speaking personally, I haven’t gotten a press release from Equality Matters for months.

In other news, the bill to give partner benefits to federal workers is back in Congress. It has a long official name, which I could look up. I would if I thought the measure had any chance of more than a symbolic committee hearing. Call me cynical, but I don’t think Capitol Hill is the venue for major victories in our valiant struggle for equal rights.

And the young psychopath who murdered gay classmate Larry King has pled guilty to manslaughter and was sentenced to 21 years in prison. Brandon McIreney made the plea deal to avoid another trial after jurors deadlocked on the first trial earlier this year. McIreney, who told authorities he was enraged by King’s effeminate antics, shot King in the back of the head during computer class.

How do you pronounce “short-lived,” by the way? I was taught that “live” in this context rhymes with five, not give. But there are those who differ. Interesting, n’est-ce pas? This is the sort of thing one discusses over cocktails. Ah cocktails. Mel is home today. Perhaps she could stir something up from the bar. After all, the day before Thanksgiving is something of a holiday, so cocktail hour rules are suspended. I’ll ask her.

She said yes! She is making me a surprise. Yay!
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Cocktails for Me

Yum. Gin and tonic with a slice of one of the pineapple oranges that we picked up from a farm stand in the Rio Grande valley on our way back from a funeral yesterday. Our friend’s mother died. We will miss her, as we miss the others in her generation who continue to slip away. The worst part for us baby boomers? We’re next.

My latest cyber surfing session alerted me to the town of Huarney, Peru, where the mayor says strontium in the tap water makes you gay. This is the explanation for the reportedly high percentage of gay men who reside in the village, although so-called scientists insist the connection is bogus. Scientists are no fun at all. Talk about thinking inside the box.

I also read that major league baseball has decided to ban sexual orientation discrimination, which is nice. Too bad we can’t ban prejudice.

And I am grateful for reader input on the issue of violence in ducks. Last week I wondered aloud why a sports team would select such a passive mascot. A duck? Really?

According to Chas Belov, male ducks are notorious for sexually assaulting their female counterparts. At Mr. Belov’s suggestion, I googled “duck rape,” only to encounter a horrific series of articles confirming the habits of what I can only now describe as a brutal species.

I also revisited the story of the necrophiliac homosexual duck from the Netherlands. In all modesty, it is a tribute to this column that we covered the necrophiliac homosexual duck six years ago, when Dutch researcher Kees Moeliker won the Ig Nobel award for his observations. But, as I’m sure you’ll agree, the incident bears repeating.

Moeliker was in his Rotterdam lab when he heard a thud against the glass. Outside the office, he discovered the body of a male mallard lying on the ground. The corpse was soon accosted by another male, who proceeded to copulate with the remains “with great force” for over an hour while Dr. Moeliker took notes. The perverse duck also pecked at his dead victim’s head throughout the encounter. Shameless!
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A Gay Tarentella

I’m on a more exacting word count these days, and as such, I have no choice but to end this column with an extra hundred or so words of random musing. It’s not enough space to encompass a new GLBT news story, even if I had another good one up my sleeve. But it’s just enough to complain about a TV commercial, one of my favorite subjects.

The latest commercial to really annoy me is the “logistics’ ad, with the profoundly irritating theme, sung to the tune of “That’s Amore.” Here’s the root of my objection:

When you use a word, or use a song, or use an image, you have to incorporate the underlying sense and feeling into your message. This song has lyrics like: “When the moon hits your eye like a big pizza pie, that’s amore!” It’s an inherent non sequitor to use its music for a UPS ad. It’s wrong. More than that, it’s intellectually sloppy and it nags at people who are left with a vague sensation that the commercial doesn’t quite work. I say “vague” because most people don’t pay close attention to TV ads, they just know that the spot is bothersome in an ill defined way. At least, that’s how I felt until I took the time to analyze my instinctive revulsion.

And now, on to Thanksiving. I’ll start by thanking you for reading.
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Ann’s column appears every week at sfbaytimes.com. She can be reached at arostow@aol.com