Is Prop 8 merely dead, or really most sincerely dead?

As you know, California’s Proposition 8 – which repealed and banned gay marriage in that state in 2008 – met a timely demise last week when the Supreme Court refused to rule on the case on appeal.


As a result, the appellate court removed the stay it had imposed on the earlier ruling striking down Prop 8 as unconstitutional, and gay marriage became legal again in California, which weddings immediately taking place in Los Angeles, San Francisco, and across the state.

The religious right, in its zeal to extract every last ounce of pain possible, initially tried to stop the appellate court from lifting its stay.  That failed.  And now they’re trying to argue that the decision striking down Prop 8 only applied to the two couples who were plaintiffs in that case, and to no other gay couples in California.

gay marriage prop 8 doma

Photo by ©John Aravosis.

Jon Davidson, the legal director of Lambda Legal (basically, the gay ACLU), weighs in via an email to a friend to say that this contention is absurd:

The argument being made by lawyers for the Prop 8 proponents that Judge Walker’s injunction against enforcement of the initiative only applies to the two plaintiff couples is totally lacking in merit for numerous reasons.

On its face, the injunction explicitly requires that California’s Governor, Attorney General, Director of Public Health (who is also the state Registrar of Vital Statistics) and Deputy Director of Health Information and Strategic Planning “and all persons under their control or supervision” no longer “apply or enforce Proposition 8.” The California Supreme Court previously held (in the litigation that followed San Francisco allowing same-sex couples to marry back in 2004) that county clerks and registrar/recorders are subject to the control and supervision of these state officials when it comes to the issuance of marriage licenses. Local officials are therefore bound to comply with the injunction by its express terms.

Judge Walker himself also ruled that county officials have no discretion relating to who may marry and that their duties are solely ministerial in nature and subject to the supervision of these state officials, and this ruling as well was never successfully appealed and therefore is binding as well.

In addition, the Prop 8 proponents never challenged the scope of the injunction before Judge Walker nor on appeal and they and Imperial County (whose officials sought to intervene) repeatedly told the courts reviewing Judge Walker’s ruling that the injunction would have statewide effect. They therefore have now waived any arguments that the injunction must apply more narrowly.

The Prop 8 proponents seem to fail to appreciate that the Perry case sought and obtained the facial invalidation of Prop 8, because there was nothing unique about the couples who sued that entitled them to prevail. Instead, there are no same-sex couples as to whom application of Prop 8 would be constitutional. In circumstances like this where a law has been held “unconstitutional on its face,” the Ninth Circuit has explained that the law’s provisions are “not unconstitutional as to [plaintiffs] alone, but as to any to whom they might be applied.”

sincerely-dead-featuredMoreover, additional controlling precedent allows federal district court judges to issue injunctions benefitting those who were not parties to a case whenever that is necessary to secure full relief to those who sued. The plaintiffs in the Perry case repeatedly (and correctly) argued in the case that they would not obtain full relief if only they were allowed to marry because such limited relief would perpetuate a stigmatizing two-tier system where same-sex couples in the state would continue in general to be denied the freedom to marry and they (like the 18,000 same-sex couples who married in 2008) would have to continually explain that they indeed are part of an exception to the ongoing marriage ban, which would continue to send the improper, demeaning state message that same-sex couples’ relationships are inferior to those of different-sex couples.

Furthermore, having Prop 8 not apply to the two plaintiff couples but continue to apply to everyone else would violate the requirement of the California Constitution that “All laws of a general nature have uniform operation.” Indeed if local officials were not bound, what would happen if the plaintiff couples traveled through San Diego or Oakland? Would they no longer have to be treated as married? Such a patchwork of treatment would perpetuate the inequality that the district court correctly ruled violates the U.S. Constitution, and thereby overrides all provisions of California law that the proponents of Prop 8 might try to use as a roadblock.

The argument being made by the proponents accordingly — to use a technical term (ha) — is pure malarkey.

The religious right is desperate at this point.  They’ve clearly lost the culture wars, at least in so far as gay rights is concerned, so now they’re striking out blindly – and striking out.

One religious right leader even suggested that southern California secede from northern California as a result of the legalization of same-sex marriages in that state.  (As you know, historically, American bigots are big fans of secession.)

Another religious right leader is now claiming that the Supreme court’s ruling striking down the anti-gay Defense of Marriage Act (DOMA – which forbade the federal government from providing the over 1,100 federal benefits of marriage to legally-wed gay couples), will lead to the disintegration of society.  More from Right Wing Watch:

On his radio show today, Focus on the Family founder James Dobson discussed the Supreme Court’s marriage equality rulings with Family Research Council president Tony Perkins and Bill Becker, an attorney affiliated with right-wing groups such as the Alliance Defense Fund and the Discovery Institute.

As you could imagine, Dobson was aghast at the decisions, arguing that same-sex marriages “threaten the entire superstructure” of society. “I believe it can come down,” Dobson warned. “This has been devastating. Even if eventually legally we somehow walk it back a bit, I don’t see our ever completely recovering from what has happened here.”

Becker went even further, saying that civilization crumbled the day the court released its rulings: “We’re talking here about the foundation of civilization and I wrote today that I believe we’ve seen the collapse of Western civilization in one day.”

And another top religious right leader is claiming that the court’s DOMA ruling is akin to earlier rulings in favor of slavery, and the internment of Japanese.  Like these people would understand civil rights if it hit them in the ass (and it just did).

I will say this about the religious right’s latest extremist language: It is a sign of the end-times, just not the end-times they were expecting.

The advent of legal gay unions now spreading across the globe is not a sign of the end of America, or the end of the world.  It’s simply a sign of the end of their influence, the end of them.

CyberDisobedience on Substack | @aravosis | Facebook | Instagram | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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