LIVE on P8TT: Shannon Minter takes your Prop 8 legal questions

by Adam Bink

Please welcome Shannon Minter, who is joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by.

A couple logistical notes:

• If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon can easily distinguish between general comments and questions so as to get to as many as possible.

• Shannon is going to get to as many different questions from different people as possible. If you have a follow-up question to Shannon’s response, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.

• Shannon has agreed to stick around for at least an hour, and longer if he has time (and if he’s having fun!). This post is live at 11 AM PST. If he has free time coming up, he’s agreed to try and stop back to answer a few more.

• For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that you may notice there is no “reply” button underneath the 3rd comment in a comment “thread”. WordPress doesn’t allow long comment threads, so if you want to respond to someone’s comment and no “reply” button appears because it would be the fourth comment in that comment thread, instead, hit reply to the comment immediately above it and direct your response using “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to.

• I’ve posted a few of the most common questions I’ve seen so as to get the ball rolling, which Shannon has responded to, below. After that, feel free to ask away in the comments.

Thanks for joining us today. If the case is denied standing at the 9th Circuit, and that decision is appealed to the Supreme Court, and the Supreme Court says the Prop 8 proponents do have standing, then is the 9th Circuit effectively forced to hear the case, or would it be heard directly at the Supreme Court?

If the 9^th Circuit holds that the Prop 8 proponents don’t have “standing”—i.e., a legal right—to appeal Judge Walker’s decision, the Prop 8 proponents can ask the Supreme Court to review that ruling. The Supreme Court could choose to hear the case, or it could let the 9^th Circuit’s ruling stand.  If the Supreme Court took the case and decided that the Prop 8 proponents do have standing, then it likely would send the case back to the 9^Th Circuit, with directions to rule on whether Prop 8 violates the federal constitution.  It is possible, but unlikely, that the Supreme Court would keep the case and rule on the constitutional issues as well as the issue of standing.

If the case is denied standing at the 9th Circuit and the Supreme Court holds that up, then going forward, what other avenues do anti-equality forces have to deny marriage rights to California same-sex couples in the future? For example, can they file some kind of new lawsuit? Would there be a “new” Prop 8-style ballot initiative that can accomplish the same purpose?

If the 9^th Circuit rules that the Prop 8 proponents don’t have standing and the Supreme Court either agrees or declines to review the 9^th Circuit’s decision on that issue, then Judge Walker’s decision will be final.  Prop 8 will be struck down, and same-sex couples in California will be free to marry.   There is nothing that the opponents of equality could do to restore Prop 8 or prevent LGBT people from having equal marriage rights in California.

If the case is denied standing at the 9th Circuit, what possible scenarios might occur with regards to the stay?

If the 9^th Circuit holds that the Prop 8 proponents don’t have standing to appeal Judge Walker’s ruling, the 9^th Circuit could either permit its decision to take effect immediately or stay its decision to give the Prop 8 proponents time to ask the Supreme Court to review the ruling.  Also, even if the 9^th Circuit did not stay its own decision, the Prop 8 proponents could ask the Supreme Court to issue an emergency stay.

There has been a lot of buzz about the TIME magazine story outlining our opponents’ “new” legal strategy going forward. Any reaction to the piece and the strategy?

There is nothing “new” about the Prop 8 proponents’ legal strategy.  As they have done all along, the Prop 8 proponents are claiming they don’t have to support their case with any evidence.  They argue that the government can bar same-sex couples from marriage just because it has done so in the past and because a majority of people don’t want gay and lesbian couples to have the same right to marry that heterosexual couples have.   The Prop 8 proponents have not come up with any new arguments or a new strategy.  Instead, they are urging the 9^th Circuit to disregard the mountain of evidence supporting the plaintiffs’ case, and to rule in their favor despite the complete lack of any evidence supporting the proponents’ case.

Our opponents are trying to undermine Judge Walker’s decision by pointing to prior cases in which courts have ruled against same-sex couples seeking the right to marry, and how Judge Walker, according to them, “ignored” these cases, such as Baker v. Nelson. What are your thoughts on the cases, how they will factor into the 9th Circuit’s decision if at all, the precedent of “settled law”, and so forth?

The United States Supreme Court has never decided whether laws barring same-sex couples from marriage violate the federal constitution.   In the past, state courts consistently upheld state marriage bans, just as most state courts once upheld laws barring interracial marriage.  In one of those old cases, Baker v. Nelson, the Supreme Court in 1972 declined review of a Minnesota Supreme Court case that upheld Minnesota’s marriage ban.  The Prop 8 proponents and others who oppose equality for same-sex couples often cite those old cases and argue that Judge Walker should have followed them.   But since those old cases were decided, a lot has changed.  The United States Supreme Court has held that laws that discriminate based on a person’s gender are presumptively invalid and should rarely be upheld.   In Romer v. Evans, the Supreme Court held that laws that discriminate against lesbian, gay, and bisexual people based on moral disapproval are irrational and fail even the lowest level of constitutional review.   In Lawrence v. Texas, the Supreme Court held that same-sex couples have a constitutionally protected right to have intimate relationships, and that their relationships must be treated with the same dignity and respect as others.   And in the past 15 years, a number of state courts—including the California Supreme Court—have held that state marriage bans violate state constitutional guarantees of equal protection and due process.  The Perry case may present the Supreme Court with the first chance to rule on these important constitutional questions.  When it does, the Court will have a wealth of positive case law and precedent to draw upon.

If you’ve got a question for Shannon, the floor is open in the comments. Ask away!