Prop 8's Slow Crawl to the U.S. Supreme Court Why it's time to take a big risk for nationwide marriage equality

By Abby Dees

Thinking Outloud

Sometimes I wish lawsuits in real life were more like they are on TV. They'd wrap up in days rather than years, and they wouldn't spend most of that time in the mind-numbing quagmire known as legal procedure. Such is the case with California's Prop 8 trial, Perry v. Brown.

A quick refresher: Prop 8 is unique among state same-sex marriage bans for a number of reasons, perhaps the biggest being that it was found unconstitutional in federal trial court and is now moving, very slowly, through the appeals process. It's poised to go all the way to the U.S. Supreme Court. No other LGBT marriage law has made it this far. This means that California's 2008 law could determine the fate of same-sex marriage for the whole country.

On Nov. 17, 2011 we all awoke to the cacophonous news that the California Supreme Court had issued a decision that will take Prop 8 to the next critical phase.

Wait, it wasn't at the top of your newsfeed? CNN didn't interrupt programming to tell you? OK, so maybe it was just me trawling the LGBT law-wonk websites and an email from Lambda Legal. Still, I can tell you that this is big news for us all.

Perhaps the reason you might have missed it is that for the last year Perry v. Brown has been stalled on a somewhat theoretical question of legal procedure. At issue is not any of the arguments about the fairness of Prop 8's same-sex marriage ban, but rather who should defend it during appeal. Normally, when someone challenges state law, the Governor and the Attorney General (AG) automatically step in to defend it. But in Perry, Governor (and defendant) Jerry Brown and AG Kamala Harris have offered what I'll call the "limp noodle" defense. In other words, they're totally fine with Prop 8 going down in flames on their watch. I think a thank you note to both of them is in order., the people who put Prop 8 on the ballot, desperately want to step in since the state won't - because if no one's there to defend the law, the marriage ban automatically ends with Judge Vaughn Walker's 2010 ruling that Prop 8 is unconstitutional. Same-sex marriage would resume in California.

And they got their wish last week. Without going into the weird hot-potato specifics of how it came down, the gist is that gets to defend Prop 8 in the 9th Circuit Court of Appeals. Same-sex marriage will remain unlawful in California at least until it all gets worked out, maybe two years or more.

If I seem happy about this, there's a reason. As a married lesbian in California I would have been thrilled to see Prop 8 off the books, and our state once again a model of equality. But then we'd have to start all over again somewhere else to tackle marriage equality nationwide, once and for all. I don't want to wait.

There's an old lawyer adage about Supreme Court cases: good cases make good law. And Perry is definitely a good case. Defense attorneys Olson and Boies built a thorough and nuanced record of exactly why Prop 8 is morally and legally wrong, while the other side looked ignorant and petty. My God, someone even turned the trial transcript into a play, it so beautifully illuminated the ideal of justice.

That perfectly crafted trial record of Perry v. Brown is what the U.S. Supreme Court would be looking at closely to make their ruling. It's hard to imagine a better foundation for a U.S. Supreme Court victory.

Yes, our High Court has never been so far to the right and there is a chance we will lose - a loss that will reverberate for perhaps generations. But two things are painfully clear: First, the Court will only continue to keep moving right; and second, the traditional strategy of fighting for marriage equality in the states is failing us as voters continue to enshrine bigotry into their state constitutions. I don't believe there will be a better time than now to make our next bold move toward equality.

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