# Prop 8 trial update: Walker's ruling upheld **URL:** \ **Category:** Great Debates\ **Created:** [June 14, 2011, 10:31pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500 "2011-06-14T22:31:20Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [February 7, 2012, 7:39pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/181 "2012-02-07T19:39:27Z")
The discussion was also resumed on page 4 of an old thread [Prop 8 trial update: Walker’s ruling upheld](http://boards.straightdope.com/sdmb/showthread.php?t=612460&page=4), but this decision is worth a new thread, say I! ---
**Author:** ![Omg\_a\_Black\_Conservative](https://avatars.discourse-cdn.com/v4/letter/o/7ba0ec/32.png) [@Omg\_a\_Black\_Conservative](https://boards.straightdope.com/u/Omg_a_Black_Conservative)\ **Post date:** [February 7, 2012, 7:39pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/182 "2012-02-07T19:39:28Z")
When the appeals process is over, most likely. So no time soon. ---
**Author:** ![Find\_Friends](https://avatars.discourse-cdn.com/v4/letter/f/c37758/32.png) [@Find\_Friends](https://boards.straightdope.com/u/Find_Friends)\ **Post date:** [February 7, 2012, 7:40pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/183 "2012-02-07T19:40:59Z")
> [@Arnold\_Winkelried](#): > > The discussion was also resumed on page 4 of an old thread > [Prop 8 trial update: Walker’s ruling upheld](http://boards.straightdope.com/sdmb/showthread.php?t=612460&page=4), but this decision is worth a new thread, say I! I was just about to provide a link (having just noticed that the thread was still going) but thatnks for your support for my new thread! 🙂 ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [February 7, 2012, 7:41pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/184 "2012-02-07T19:41:11Z")
By the way, here was my question in the other thread: > [@Arnold\_Winkelried](#): > > What isn’t quite clear to me is - who gets to decide when and where same sex marriages can be performed in California again? If no one issues a stay, same sex marriages can resume immediately, right? But then who decides whether or not there is a stay pending further appeals? Maybe this decision won’t be appealed any further. 😉 ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [February 7, 2012, 7:43pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/185 "2012-02-07T19:43:47Z")
And the next question is, what’s the Las Vegas line on the Supreme Court deciding that anti-same-sex-marriage laws violate the US constitution? John Roberts Antonin Scalia Anthony Kennedy Clarence Thomas Ruth Bader Ginsburg Stephen Breyer Samuel Alito Sonia Sotomayor Elena Kagan Is it still, as I have read, 4-4 with Anthony Kennedy being the tie-breaker? pro-SSM: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan anti-SSM: John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito ---
**Author:** ![Find\_Friends](https://avatars.discourse-cdn.com/v4/letter/f/c37758/32.png) [@Find\_Friends](https://boards.straightdope.com/u/Find_Friends)\ **Post date:** [February 7, 2012, 7:49pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/186 "2012-02-07T19:49:28Z")
> [@Arnold\_Winkelried](#): > > And the next question is, what’s the Las Vegas line on the Supreme Court deciding that anti-same-sex-marriage laws violate the US constitution? > > John Roberts > Antonin Scalia > Anthony Kennedy > Clarence Thomas > Ruth Bader Ginsburg > Stephen Bryer > Samuel Alito > Sonia Sotomayor > Elena Kagan Um. Good question. While some of the names here are familiar to me (Yeah, I know, I really should know something about each of them!) I don’t know how the majority would be inclined, let alone the individual jurors. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 7, 2012, 7:49pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/187 "2012-02-07T19:49:43Z")
> [@Arnold\_Winkelried](#): > > What isn’t quite clear to me is - who gets to decide when and where same sex marriages can be performed in California again? The story I read implied that if the deadline passed for the Prop. 8 proponents to file to have the case heard by the entire Court of Appeals, then the Proposition would be set aside, and marriages could resume. I don’t think it’s likely that the deadline will pass without that action (although it wouldn’t surprise me if they chose to file on the last possible day, just to delay the possibility for an ultimate ruling against them). > [@YogSosoth](#): > > So, Prop 8 and gay marriage in an election year. I kind of wish it wasn’t, because this is a rallying issue for the right wing extremists, but ultimately it had to be decided sooner or later. The fact that there isn’t an ultimate ruling in the near past (or the near future) on election day might mean it’s a bit LESS likely that the Bad Guys can use it as a get-out-the-vote issue. And yes, by “Bad Guys” I _DO_ mean the opponents of same-sex marriage. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 7, 2012, 7:50pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/188 "2012-02-07T19:50:03Z")
It looks like they could have started weddings right away, but the stay issued back in August 2010 remains in effect for now. From Update 10: > [@](#): > > Also at today’s conference, attorney Ted Olson addressed the stay that is currently prohibiting Judge Walker’s now-upheld ruling from going into place. According to today’s ruling, the previous stay placed on that ruling by the 9th Circuit in August 2010 is in effect until the appeals court’s mandate is final. What this means is that the proponents of Prop 8 now have 14 days to ask for a rehearing by an en banc panel of the 9th Circuit. If they do not, the stay will be lifted. It is likely the proponents will ask for further appellate review, and ask for the 9th Circuit to place an extended stay on its decision pending that review. If the 9th Circuit were to deny that stay, the proponents could then go to the Supreme Court to ask for a stay pending appeal. The following guidelines for an en banc rehearing can be found after Judge Smith’s concurring and dissenting opinion in today’s ruling: So they have 14 days to make a decision. If my legalese reading is correct, the 9th Circuit could agree to rehear the ruling with the full 11 judges on the 9th Circuit, in which case the stay on the marriages would remain until a decision’s rendered, or if the 9th Circuit doesn’t rehear, the stay would expire in 14 days and the proponents of Prop 8 would have to get a higher court, the Supreme Court, to agree to a stay while a decision is being made Another lawyery question: I don’t know how long the Supreme Court usually takes to decide to take a case. I’m assuming it’s not so quick as to be within a couple days, and the that process of submitted the case to the SC and them accepting it could take months. Does that mean if the SC drags its feet on accepting the case, and the 9th Circuit doesn’t re-rule on the case, gay marriages will be legal here in 14 days? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [February 7, 2012, 8:00pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/189 "2012-02-07T20:00:23Z")
> [@Asimovian](#): > > I’m no lawyer either, but my understanding is that the basis under which Prop 8 would be found to be unconstitutional would make it really hard for CA (or any other state) to write a law that somehow circumvented the constitutionality issue. So even though their ruling might be directed at Prop 8, indirectly, it would likely impact the entire country. > > My understanding may be shit, but that’s what it is at the moment. I am not a lawyer either, but the specific “question presented” for appellate review was concerning Prop 8 ONLY. Additionally, I read Walker’s opinion and no where does he mention Baker v. Nelson 1971, US SC, where they ruled SSM’s do NOT violate the federal constitution. Let’s say a state court case were to be filed on SSM’s in another state covered by the 9th, those courts, ruling on SSM, even if prop 8 were upheld, are not required to follow the ruling, IMO, as inferior courts are only bound by the USSC. Article 6’s Supremacy Clause does not include those courts inferior to the US SC. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 7, 2012, 8:01pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/190 "2012-02-07T20:01:23Z")
> [@Arnold\_Winkelried](#): > > And the next question is, what’s the Las Vegas line on the Supreme Court deciding that anti-same-sex-marriage laws violate the US constitution? I would say the odds of that happening are very, very low, and that’s probably why this decision was written only to apply to California. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 7, 2012, 8:03pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/191 "2012-02-07T20:03:23Z")
> [@Arnold\_Winkelried](#): > > The discussion was also resumed on page 4 of an old thread > [Prop 8 trial update: Walker’s ruling upheld](http://boards.straightdope.com/sdmb/showthread.php?t=612460&page=4), but this decision is worth a new thread, say I! > [@Trans Fat Og](#): > > I was just about to provide a link (having just noticed that the thread was still going) but thatnks for your support for my new thread! 🙂 Since that thread was revived today, I’m merged it into the older thread. I don’t think we need two parallel conversations on the same issue. Posts #177, 179-80, 182- 5 and 189-190 were originally made to **Trans Fat Og** ’s thread. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [February 7, 2012, 8:04pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/192 "2012-02-07T20:04:22Z")
> [@Marley23](#): > > I would say the odds of that happening are very, very low, and that’s probably why this decision was written only to apply to California. In theory, yes, but if this California amendment is found to be unconstitutional, it would be really hard to write a law that would **not** be in violation of the constitution. ---
**Author:** ![Omg\_a\_Black\_Conservative](https://avatars.discourse-cdn.com/v4/letter/o/7ba0ec/32.png) [@Omg\_a\_Black\_Conservative](https://boards.straightdope.com/u/Omg_a_Black_Conservative)\ **Post date:** [February 7, 2012, 8:06pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/193 "2012-02-07T20:06:44Z")
So how can an amendment to a state’s constitution be considered unconstitutional unless it violates the Federal constitution? I don’t see how this ruling can only apply to California, since it would apply equally to every state which has amended their constitution to ban gay marriage (like in Florida). I’d say there’s a pretty good chance SCOTUS takes the case. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [February 7, 2012, 8:09pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/194 "2012-02-07T20:09:53Z")
> [@YogSosoth](#): > > Another lawyery question: I don’t know how long the Supreme Court usually takes to decide to take a case. I’m assuming it’s not so quick as to be within a couple days, and the that process of submitted the case to the SC and them accepting it could take months. Does that mean if the SC drags its feet on accepting the case, and the 9th Circuit doesn’t re-rule on the case, gay marriages will be legal here in 14 days? First, a Petition for Certiorari must be submitted under the Rules of the SC and that means a timley appeal under those same rules. If granted, a ruling may not be handed down until next term. The SC only grants to hear cases about 80-100 times a year, the MAJORITY are denied. If a STAY is applied for to the SC, it would go to the Justice for that Alottment, meaning whoever has CA. I did not look who it is , but he or she can grant the STAY, deny it, or refer it to the whole court. ---
**Author:** ![Asimovian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asimovian/32/172_2.png) [@Asimovian](https://boards.straightdope.com/u/Asimovian)\ **Post date:** [February 7, 2012, 8:14pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/195 "2012-02-07T20:14:34Z")
> [@Omg\_a\_Black\_Conservative](#): > > So how can an amendment to a state’s constitution be considered unconstitutional unless it violates the Federal constitution? I don’t see how this ruling can only apply to California, since it would apply equally to every state which has amended their constitution to ban gay marriage (like in Florida). That’s kind of what I was getting at with my assumption above, but maybe\*\* lawbuff \*\*can clarify why a SCOTUS ruling would be limited. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 7, 2012, 8:15pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/196 "2012-02-07T20:15:05Z")
> [@Arnold\_Winkelried](#): > > In theory, yes, but if this California amendment is found to be unconstitutional, it would be really hard to write a law that would **not** be in violation of the constitution. > [@Omg\_a\_Black\_Conservative](#): > > So how can an amendment to a state’s constitution be considered unconstitutional unless it violates the Federal constitution? I don’t see how this ruling can only apply to California, since it would apply equally to every state which has amended their constitution to ban gay marriage (like in Florida). I’d say there’s a pretty good chance SCOTUS takes the case. Sorry, I was saying I think there’s very little chance SCOTUS rules that all anti-gay marriage laws are unconstitutional. I think they’ll take the case, and we’ll see if five of them uphold the Ninth Circuit’s theory that allowing gay marriage and then banning it is unconstitutional. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [February 7, 2012, 8:23pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/197 "2012-02-07T20:23:39Z")
> [@Asimovian](#): > > That’s kind of what I was getting at with my assumption above, but maybe\*\* lawbuff \*\*can clarify why a SCOTUS ruling would be limited. Romer v. Evans was a case where a state constitutional AM, on gay rights, was found to violate the federal constitution. Even if this Prop 8 case went to the US SC, they ONLY rule on the “question presented”, and that would be such as “does prop 8 violate the federal constitution”, etc. As I stated above one post, the SC has already ruled SSM’s prohibitions do NOT violate the federal constitution. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2012, 9:36pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/198 "2012-02-07T21:36:04Z")
> [@Trans Fat Og](#): > > The explanatory text here is interesting. Interpretations of civil rights can only be “ratched up” and never down, it seems. The unique situation in California is that gays seeking SSMs had already known them origimally, and then came [Proposition 8](http://en.wikipedia.org/wiki/Proposition_8). > > In the statement by Judge Reinhardt, the court said, _ **uh-uh** _. No way can something considered a civil right that has been already enacted (by legislation?) be yanked away from a minority group. SSM wasn’t enacted by the legislature in CA-- it was deemed by the CA SC to be protected under the CA constitution. Prop 8 was a ballot initiative to amend the constitution. ---
**Author:** ![Find\_Friends](https://avatars.discourse-cdn.com/v4/letter/f/c37758/32.png) [@Find\_Friends](https://boards.straightdope.com/u/Find_Friends)\ **Post date:** [February 7, 2012, 10:21pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/199 "2012-02-07T22:21:51Z")
> [@Marley23](#): > > Since that thread was revived today, I’m merged it into the older thread. I don’t think we need two parallel conversations on the same issue. Posts #177, 179-80, 182- > 5 and 189-190 were originally made to **Trans Fat Og** ’s thread. As I figured would happen. > [@John\_Mace](#): > > SSM wasn’t enacted by the legislature in CA-- it was deemed by the CA SC to be protected under the CA constitution. Prop 8 was a ballot initiative to amend the constitution. Okay, then. Thank you. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 7, 2012, 10:43pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/200 "2012-02-07T22:43:13Z")
> [@Omg\_a\_Black\_Conservative](#): > > So how can an amendment to a state’s constitution be considered unconstitutional unless it violates the Federal constitution? I don’t see how this ruling can only apply to California, since it would apply equally to every state which has amended their constitution to ban gay marriage (like in Florida). I’d say there’s a pretty good chance SCOTUS takes the case. The ruling addresses only the withdrawal of the right to same sex marriage. It does not address same sex marriage generally. In other words, once same sex marriage rights are granted by a court or legislature, enactments taking that right away violate the federal constitution. It doesn’t matter whether the right is inherently protected by the federal constitution; once it is granted, it vests and cannot be taken away. So Florida’s ban, which was enacted before anyone in Florida had the right to same sex marriage, is constitutional, for the limited purposes of this ruling. Any ban enacted after a same sex marriage would fall under this ruling (assuming the 9th Circuit had not written its opinion to apply to California only, which it did) within the boundaries of the circuit. The odds that the ruling is not stayed pending the next appeal are slim, to say the least. So don’t get too excited, Californians. It will probably go to the 9th Circuit en banc (ie., the whole court rather than a panel) before it makes it to SCOTUS. [Previous page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=9) [Next page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=11)