6 takeaways on Prop. 8 ruling

6:32 PM, Jun 26, 2013   |    comments
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The nation's high court has offered its final opinion on California's 2008 ban on same sex marriages.  But the issue is far from over, with the Prop 8 aftermath likely a heated issue for weeks and months to come.

Six quick takeaways from the decision and its impact here in California:

1. Defenseless: Few topics from Wednesday's ruling seem as notable as the fact that the ruling really hinged on decisions made in the past... by two consecutive governors and attorneys general... to not defend the embattled constitutional amendment while on appeal. As it turns out, that was no small element.  Chief Justice John Roberts, who telegraphed the concern during March oral arguments, hammered it today in his ruling.  The ruling also hinted at some friction between the Supremes in D.C. and either the California Supreme Court -- which opined that Prop 8's political team had standing -- or the Ninth Circuit Court of Appeals, which asked the state's highest court for the opinion.

"The fact that [California's high Court] thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court's settled law to the contrary." wrote Roberts.

The 'take a pass' decisions by Gov. Arnold Schwarzenegger, Attorney General Kamala Harris, and Gov. Jerry Brown as governor and attorney general... were huge.

2. As California Follows:  When this debate began, back with the controversial action by then San Francisco mayor Gavin Newsom in 2004 to issue same sex marriage licenses, California was still very much in the vanguard of the gay rights movement.  Now, more than nine years later, millions of Americans have move past the Golden State.  12 states, plus the District of Columbia, already recognize gay marriage.  If things move as expected, California would become number 13.

3. Gavin Newsom: Father of the Prop 8 Repeal? Newsom's role at the start of this most current fight (which, itself, was a new chapter in a fight that dated back to 2000's Proposition 22 and even before that) is, not to be too bold, but critical.  After all, it was his action that sparked the state court legal fight that... in turn... sparked the Prop 8 political campaign.  The charismatic Democrat took a lot of heat for his "like it or not" quip during the 2008 campaign.  But now, it's Newsom and same sex marriage supporters that have apparently come out on top.  For a guy who has ambitions for higher office, you might hear more about this in an election to come.

4. Legal Beagles Won The Fight:  Towards the end of 2011 and even into 2012, with this federal court fight somewhat mired down in appeals and court briefs, there was a spirited -- some would say testy -- debate among backers of gay marriage: why not just put the issue back on the ballot?  After all, public support for same sex marriage was at 53 percent in a statewide poll, and the issue was big news in other parts of the nation.  But the backers of the legal fight prevailed on activists to stand down and let the court process run its course.

Even so, there's still some danger in the SCOTUS ruling -- namely, that another court decides the 5-4 ruling only applies to the two couples involved in the lawsuit... and not the millions of gay men and women who have been waiting to tie the knot.  If that happens, you can almost bet we'll see this on the statewide ballot in 2014.

5. Roiling Political Waters Ahead?  While supporters of same sex marriage will no doubt point to polling that shows their position at an all-time high, political campaigns have a way of turning on all kinds of issues.  Proposition 8, itself, was a campaign waged about education standards (teaching about gay marriage) as much as it was about anything else.  For opponents of same sex marriage, a new political fight is also fraught with danger.  And a particular flash point could come inside the ranks of California Republicans, beaten down by years of fights over social issues and electoral losses.  What would the GOP's statewide candidates say about the issue?  How much publicized and nasty Republican in-fighting might push some undecided voters towards approving same sex marriage?  And, should legislators seriously be considering placing the issue on the ballot themselves (even after this ruling), what impact would it have on their own re-election races?

6. Defiant County Officials?  We now wait for a matter of weeks (or less?) for local officials to start issuing marriage certificates for gay couples.  But will any of them refuse?  Sacramento County Clerk/Recorder Craig Kramer told News10 Wednesday morning that the issuing marriage licenses is little more than a "ministerial duty" -- and by that, he meant 'administrative,' one where the local official really doesn't have an active role.  Still, there are some communities where legal watchers wonder whether the process will be bumpy -- especially as some local officials were uneasy to take part during the 143 days that gay marriage was legal in 2008, and one southern California official wanted to join the pro-Prop 8 federal legal fight.

If there's defiance, state officials would no doubt have to intervene.

But lest we get ahead of ourselves, let's see when the legal stay is removed... and whether additional legal challenges are filed.


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