Prop 8 Update! / United States Social Forum!

Hey readers!

I wanted to give a brief update of the Proposition 8 trail in San Francisco for all those who aren't caught up, but first I want to let you know that I will not be blogging for a week. Instead, I will be attending the United States Social Forum(USSF) in Detroit, Michigan!

For those of you who may not know what the USSF is, I suggest looking into it here. The first USSF took place in June of 2007 in Atlanta, Georgia, and convened over 12,000 people together to begin what has been described as one of the largest social movements in the history of the United States. To really understand what the USSF is, however, I'd like to just backtrack a tad and explain it's origin.

The World Economic Forum was formed on 1971 and meets annually in Davos, Switzerland to discuss the future of the world's global market. For those of you educated in economics, the date that this organization was created may seem familiar. The early 1970's marked a period of drastic economic change in the United States, phasing out of a period of "keynesianism" (named after the British economist John Maynard Kaynes) and into our current governing economic philosophy of Neoliberalism (not what it sounds like).

Essentially, Neoliberal philosophy pushes for mass government deregulation on private businesses, tax cuts for the upper eschalon of society to promote innovation and production, and the privatization of welfare programs and governmental agencies. Anyone who has been following recent news may recognize these ideals in the sentiments and views of the Tea Party Movement that has been recently gaining political recognition. It may seem like the answer to the prayers of the rich (who, of course, do not depend on welfare programs for their survival), but the effects of rampant, unregulated capitalism clearly have its downsides.

Err....where was I? Oh, right, World Economic Forum. Well, each year, this coming together of the richest and most powerful people in the world often culminates in a celebration of Neoliberal capitalism and plans to further its impact and influence across the planet.


But do not be fooled - The economic, political, and social impacts of Neoliberalism (and organizations such as the International Monetary Fund (IMF), World Trade Organization (WTO), and World Bank) are disastrous and have been the root of social uprisings across the planet for decades.

Enter: The World Social Forum. The World Social Forum (WSF) convened for the first time in January of 2001 in Porto Alegre, Brazil as a response to the effects of Neoliberalism. Fueled by the disadvantaged and exploited indigenous peoples of nations across the planet, the WSF has become a prominent force in the search for an alternative lifestyle to Neoliberal capitalism.

Long story short, the USSF was created in the United States as a North American arm of the World Social Forum, and brings together peoples of various socio-economic statuses, occupations, races, ethnicities, nationalities, sexes, genders, sexual orientations, religions, etc. in the United States for a week-long discussion (consisting of actual discussions, performances, environmental cleanups, feasts, etc.) of the current economic and social state of our country. It has been regarded as one of the largest uprisings of oppressed Americans in history, and I am incredibly excited to be a part of it this year!

I will hopefully have some pictures and stories to tell when I return (next Sunday), so be sure to check-in!

WHEW!

Well, that took much longer to explain than I expected. Now, onto business:

Today's Topic: Prop 8 Update!

So, I'm sure many of you have been wondering what has been the status of Prop 8 since the legal battle in San Francisco began? Well, not much. Indeed, the case has just recently come to a close and we are now waiting for Judge Walker's ruling on whether the discriminatory law will be overturned or not. In an article released by the Advocat, Maggie Gallagher, former presidenct of the National Organization for Marriage (NOM....nom, nom, nom!!!), has predicted that the law will get overturned, however she also stated that although it may be overturned at this level, "...millions of Americans do understand why marriage is the union of husband and wife, and I believe the majority of the Supreme Court will as well."

Just as a note, aside from her vehement (yet, surprisingly cordial) opposition to same-sex marriage, Gallagher is also known for her appearance on the Dr. Phil show in an incredibly fascinating and controversial episode dedicated to the issue of same-sex marriage.

Although there is a chance that this case will ultimately reach the US Supreme Court, as Vikram David Amar, Professor of law at UC Davis, points out, there may be an equally strong chance that the case will not. It all depends on Judge Walker's ruling of the case that has just concluded.

"If the Ninth Circuit rejects the plaintiffs' challenge and upholds Proposition 8, I would be very surprised to see the U.S. Supreme Court grant the plaintiffs' request to take up the case. As far as I can tell, there would be no conflict among the lower courts on the question of a federal right to gay marriage (no court has yet embraced one), and the Justices in Washington DC would, I suspect, be quite content to let the issue "percolate," as they say, in the states and the lower courts for a while before deciding to address it.

Alternatively, if the Ninth Circuit were to invalidate Proposition 8, but do so in a way that called into question only California's ban on same-sex marriage (by pointing out some uniquely problematic feature of the California scheme) -- but not similar bans in other states -- then it is still possible (though much less likely) that the Supreme Court would stay out of the matter.

The likelihood of Supreme Court review will go up a great deal more if the Ninth Circuit invalidates Proposition 8 on the broad grounds that all same-sex adult couples have a right to enter into marriage under the Fourteenth Amendment, period. This kind of ruling would essentially create a federal constitutional right in the Western states that hasn't been recognized elsewhere; under those circumstances, I think the Supreme Court would have a hard time deferring (or dodging, depending on one's point of view), the issue for long. "


So, although we may have to wait a bit to see the results of this case, those results will be pivotal in predicting the court's likelihood to accept the case for review. Additionally, the number of judges who will ultimately hear the appeal to the US Court of Appeals Ninth Circuit may also weigh in on the Supreme Court's likelihood to hear the case and their ultimate decision:

"What we can say now is that the Ninth Circuit is a place where it matters a great deal, in high-profile cases, which three judges get drawn; while the Ninth Circuit has a reputation for being liberal, I think it is more accurate to say the Ninth Circuit has a lot of smart, confident, independent-minded judges, and a significant (though not overwhelming) number of them are traditionally liberal or libertarian in their philosophy, so that drawing two or three liberal judges on one panel happens not infrequently. So how the Ninth Circuit panel rules in the Proposition 8 case may turn in significant measure on who comprises the panel.

It is also very important to note here that there is one possible step in between the three-judge panel and the Supreme Court, known as "en banc" review -- that is, review by an entire court, not just a three-judge sample of the full court...

...

How might that play out in the Proposition 8 case? If the three-judge panel rules against the plaintiffs and in favor of Proposition 8, the challengers to the ban on same-sex marriage might seek en banc review, but they might not. If they obtain en banc review and lose in front of the group of 11 judges, that loss does more damage to the cause than the loss in front of the three-judge panel; it may be harder to later undo an unfavorable en banc ruling than an unfavorable three-judge ruling. And, as already suggested earlier, the Supreme Court is unlikely to step in if the Ninth Circuit lets Proposition 8 stand, so an en banc ruling against the plaintiffs would likely persist for some time.

If, however, the three-judge panel rules in the plaintiffs' favor and strikes down Proposition 8, then Proposition 8's defenders have little to lose by seeking en banc review. If they obtain en banc review and win en banc, the Supreme Court will probably leave that en banc ruling undisturbed. And if they lose in front of the en banc panel because of that panel's makeup, they probably don't have to worry about having that ruling remaining on the books for long, because the Supreme Court, as I suggested earlier, will likely have a lot of pressure on it to step in and resolve the matter for itself if Proposition 8 is invalidated."

Ultimately, I think the Supreme Court will take the case either way, given that this would be an incredibly important ruling for rookie justices Sotomayor and Kagan (if she indeed successfully nominated to the court). However, one never knows. At this point, all we can do is hope that Judge Walker views Prop 8 as broadly discriminatory and the Ninth Circuit Court, whether via en banc review or not, agrees. Aside from the criticism attorneys Olsen and Boies have received for taking this case up too early, we must all stand in solidarity now and hope for the best.


Thanks for reading, folks, and I look forward to sharing my USSF experience with you all when I return!

Signing Off,


~ Legally Gay