All three were convinced that the case was eventually going to end up before the Supreme Court and that when it does, Justice Anthony Kennedy was going to be the deciding vote in favor of allowing gay marriage. As such, Barton revealed that there is some talk on the Right of not appealing or fighting the Prop 8 ruling and letting California have gay marriage in order to keep the case away from the Supreme Court and thereby saving the marriage amendments in all the other states:You can listen to the interview on the blog, but here's a transcript:
It all just gets curiouser and curiouser!Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.
So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."
Wildom: So you think the better situation here would be California not to appeal ...
Barton: Well, I'm telling you that that's what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said "on no, you left too many arguments on the table, you stayed technical." And now, knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.
4 comments:
Then if "they" don't appeal it, "we" should, to force their worst nightmare. Right?
Jim, we can't. It is a legal concept called 'standing.' To appeal one must have lost a case. No the next legal strategy would be to pick another State, something perhaps in the old Confederacy and file a suit claiming California as relevant precedent. One thing that gets the Court's attention and a writ of certiari is when two circuits disagree. So it would not matter if we won or lost, as long as we came up another hierarchy.
FWIW
jimB
So, it seems that some cons are afraid that they'll lose the fight... maybe that's because they're starting to recognize that they have no argument and can only win with mass hysteria based voter referenda and legislation.
Jim,
A district court decision is not precedent. It is res judicata to the parties so it would be binding on California. it may be persuasive but, for example, a different district court in California is not required to follow the judgment or holding if applied to different parties or a different law.
At present the 8th Circuit has held that Nebraska's state constitution can define marriage as between a man and woman. This would appear to create a split between the 8th Circuit and the district court's decision. If the 9th Cir affirms, then SCOTUS would likely review to resolve the conflict.
Kevin K.
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