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Yesterday's actions by a 3-judge panel of the Ninth Circuit Court of Appeals very likely delayed a decision in Perry v. Schwarzenegger (the Proposition 8 trial) for many months.

That means that it becomes more and more likely that there will never be a final judgement handed down, because on November 6th, 2012 -- before the United States Supreme court has weighed in -- sometime around 10:00 PM Pacific Time if my druthers are correct, it will be obvious that an initiative to revoke Proposition 8 has passed, and the court case will be mooted.

Unless we blow it.

Why it will take so long.

The 3-judge panel of the Ninth Circuit yesterday asked the California Supreme Court for a ruling as to whether, under California law, proponents of a ballot initiative have standing to defend a challenge to said initiative in court.

Whether that's legal gibberish or completely clear to you, the upshot is that this means delay, possibly a long delay. As Shannon Minter, Legal Director at the National Center for Lesbian Rights, noted:

"In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to it by the Ninth Circuit."

No one expects that kind of delay, but no one seems to expect the California Supremes to be especially speedy either. And it's not like the seven of them just gather in a room and vote; there will likely be briefs and responses filed, and possibly oral arguments heard.

It is possible that the California Supreme Court will rule that the proponents do not have standing to appeal; if this is the case most analysts (but not all) expect that Judge Walker's ruling will stand, the proceedings will be over and marriage between same-sex couples will once again be legal in California. And this is what I'm hoping for.

But there is a good chance that they will rule otherwise, and the ball will be back in the Ninth Circuit's Court. The Ninth Circuit panel will likely take several more months to issue a ruling, and then the aggrieved party can ask for an en banc hearing before an eleven judge panel of the Ninth Circuit.

If, as expected, the aggrieved party is the proponents (those in favor of Proposition 8), there is every reason to believe they will do this rather than appealing directly to the Supreme Court -- for as long as the case is not ultimately resolved, same-sex marriage will almost certainly not be legalized because the court will continue to grant stays.

Whatever the decision of the en banc panel, it will be appealed to the United States Supreme Court, which could take a year or more to issue a ruling. Given the sequence of steps still involved before the Supreme Court could even get the case, let along render a judgement on the merits, and given the likely duration of each step, it is now all but inevitable that such a judgement will not be handed down before the November 2012 elections.

But why have a ballot initiative if the Supreme Court will eventually rule?

Why go to all the effort, and spend all the money, to put an initiative on the ballot if, in at some point after November, 2012, the Supreme Court would strike down Proposition 8 anyway? Wouldn't it be better to declare such bigotry unconstitutional, rather than just erase it from the California constitution?  

Well, yes it would. But the question is, "Do you feel lucky? Well, do ya, LGBTs and friends?"  

Everyone pretty much agrees that the decision would come down to one Justice on the Supreme Court, Anthony Kennedy, and what he had for breakfast the morning they decide whether it will be 5-4 to uphold, or 5-4 to declare Prop 8 unconstitutional. Not the greatest odds, especially considering that none of us know what Judge Kennedy likes to eat in the morning.  We need a backup plan.

Will a ballot initiative pass?

In 2008, Proposition 8 won by a margin of 52.24% - 47.76%, a 4.48% differential, representing just short of 600,000 votes. That means 300,000 voters have to change their minds or no longer vote and be replaced by those who favor repeal. But two years from now, unless trends reverse, social forces and demographic changes suggest that there is little doubt that the votes will be there to repeal Proposition 8. Barring an invasion of Mormons or an earthquake taking out the entire Bay Area, that is.

Trend of CBS Polling


Pew trends

(As another example, in 2008, 57.7% of Orange county voted in favor of Proposition 8. But a 2010 poll showed that 52% of county residents are now fine with gay marriage, a swing of more than 9%. Just half of that recorded swing is enough to push a repeal initiative over the top, and we still have two more years of social and demographic changes to go).

Unless we blow it again. Unless we allow NOM and its allies to once again fight the battle on their terms. Unless we cannot come up with television ads to counteract the lies that they will inevitably run about "protecting the children" and preaching the "homosexual agenda" in schools; the same lies that turned the tide in 2008. Unless they have all the enthusiastic door-knockers, phone-bankers and get-out-the-voters.  Unless they come out, and we stay home.

So it's probably up to us now: progressives, progessive organizations, LGBTs, LGBT groups and LGBT supporters nationwide, to make sure that Proposition 8 dies the death it deserves:

              PROPOSITION EIGHT: R.I.H.
                November 6th, 2012
             "You were never welcome"

Originally posted to jpmassar on Wed Jan 05, 2011 at 10:29 AM PST.

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