In a scene out of a John Grisham novel, a previously forgotten legal case may determine the future of same-sex marriages. In 1997, the Supreme Court said that it had “grave doubts” that sponsors of an “English only” ballot measure in Arizona had the right to defend the law in a federal court. This all but forgotten case could decide the fate of Proposition 8. However, it’s still going to be over three months before same sex couples can legally marry in California.
In December, the Ninth U.S. Circuit Court of Appeals will hear arguments regarding Judge Vaughn Walker’s decision that overturned the controversial proposition. The court has asked both sides to address the question of whether or not the ballot’s campaign committee has the right to represent the state’s interest in upholding the law. The answer to this question is critical to the outcome of this case.
Should the answer be yes, the court must examine whether or not the constitutional rights of gay men and women have been violated, based on discrimination due to sexual orientation. If the answer is no and the Supreme Court agrees, Proposition 8 goes the way of the dinosaur. However, don’t expect proponent’s of the now unconstitutional law to go quietly into history. This current legal turn of events comes from the state refusing to get involved.
Traditionally, the Attorney General would defend a state law if it’s overturned. However, both the Governor and the Attorney General, Jerry Brown, refused to defend the law on the grounds of its unconstitutionality. Thirteen years ago during the 1997 Arizona case, Justice Ruth Bader Ginsburg wrote, in a unanimous court decision, that state officials are the only individuals who can defend their laws. The only exception, according to Ginsburg, is when a state passes la law that allows legislators to represent the state’s interests. This is not the case with Proposition 8. The case was ultimately decided on other grounds, so the issue of whether or not initiative backers could defend their law was never decided.
Unconstitutionality aside, the other problem with overturning the same-sex marriage ban has to do with the state’s defense of unpopular laws. Proponent’s of Proposition 8 say that state officials should not be allowed to walk away from the defense of unpopular laws. While banning same-sex marriages is unconstitutional, denying American citizens of their basic rights, it does open a legal Pandora’s Box.
That box has to do with the foundation of the democratic process. Does the overturning of Proposition 8 mean that issues voted upon by a majority can be made null and void by a court of law? In the case of Proposition 8, unconstitutionally trumps voting. However, it opens a legal door that leads to a slippery sloop. Will measures that were voted into law be appealed in the courts if one group of people doesn’t agree with them? Welcome to the wonderful and often skewed world of the democratic process.