Mr. and Mr. Smith Go to Washington: Gay Marriage and the U.S. Supreme Court - Part One

Constant Readers,

I had planned to write about something else today, but I keep getting questions about recent effort to appeal California's prohibition on same-sex marriage to the United States Supreme Court. So, Ima do a three-part series on the Supreme Court stuff this weekend and promise to bring back videos next week.

(Why three parts? Because I want to make sure y'all have a good foundation. My readers are super-smart, and some of you know this stuff, but I want to make sure we're all on the same page before things get complicated.)

Ok?

Stick with me and you'll be a hit at cocktail parties.

Today, I write about two issues: (1) the basics of the case, and (2) how the process of getting to the U.S. Supreme Court works.

Tomorrow: What the Supreme Court has said thus far about gay rights and gay marriage.

Sunday: Why not everyone is on board with this strategy.

1. Basics of the Case

For starters, here's the complaint: Download Federal Court Complaint

Now an important point about what the case IS NOT:

It is NOT an appeal of the Prop 8 case. The federal courts don't give a crap about our revision versus amendment nonsense. The case is NOT arguing that Prop 8 was invalidly added to the state constitution. What they are arguing is that the substance of Prop 8 (the fact that same-sex marriage is unlawful in California) is a violation of the United States Constitution.

And another thing...

The first issue to be litigated is the Plaintiff's request for an injunction. What that means is that Plaintiffs are asking the federal court to STOP enforcement of Prop 8 while the underlying case is litigated. (Injunctions are used in cases of emergency, and are decided relatively quickly compared to the underlying case.) I'd speculate on whether the court will agree to the injunction but my powers of prognostication are not up to snuff recently.

On to the mechanics...

The Plaintiffs are a lesbian couple (Kris Perry and Sandra Stier) and a gay couple (Paul Katami and Jeffry Zarrillo), each of whom was recently denied a marriage license and all of whom live in Berkeley, CA. (Bios here:Download About_the_Plaintiffs.)

The Defendants are the Governor, Jerry Brown and anyone else whose job requires them to enforce Prop 8. Obviously, none of this is personal - each is only being sued in their official capacity.

The Lawyers are David Boies and Theodore Olson were adversaries in the Bush v. Gore case. But the two have decided to team up this time and work together to get gay marriage in front of the U.S. Supreme Court. So eager were they to spearhead this effort that they filed a complaint in federal court last Friday before the Prop 8 ruling even came down. (Bios here: Download Attorney_Bios.)

The Organization sponsoring the lawsuit is the American Foundation for Equal Rights (AFER). This is a brand new organization whose first order of business is helping to bring this case. The Board President of AFER is Chad Griffin who was an Executive Producer of movie "Outrage" and one of Advocate magazine's People of the Year in 2008 in part because he came in at the end of the No on 8 campaign to get Hollywood types to donate big bags o' money.

2. How do you get to the Supreme Court?

On a basic level, the U.S. Court system is divided into two "tracks" - the state track (where you go to argue about state law) and federal track (where you go to argue about federal law). Each track has the same three levels:

a. general court - where anyone can bring a case

b. appeals court - if you lose at general court, you can go here

c. supreme court - justices can pick (and are really snotty about) which cases to hear

For the general and appeals court levels, geography determines precisely which court you're in - these are "districts." On the state level, districts are pretty easy to figure out - most cities have a general court, some lines are drawn in the state for appeals courts and everyone goes to the same state supreme court.

Here are the names for various courts on the federal track:

a. general court - District Court - California has four of these - Northern, Central, Eastern and Southern

b. appeals court - Circuit Court - California is in the Ninth Circuit

c. Supreme Court - um, you know this one.

SOOOOOOO...the case we're talking about was just filed in the District Court for the Northern District of California. (Why the Northern District? Because the Plaintiffs live in Berkeley.)

After the Northern District rules on the case, if Plaintiffs lose, they will appeal the case to the Ninth Circuit. (Note that they can appeal a negative ruling on the request for injunction, too.)

After the Ninth Circuit rules on the case, if Plaintiffs lose, they will appeal the case to the United States Supreme Court.

The U.S. Supreme Court can refuse to hear the case. (We'll get back to this.)

Injunction aside, once we get to the "real" part of the case, how long does all this take?

For-ev-er.

Actually more like 5 years. But we could vote on Prop 8 ballot measures a few times before then.

Okay, you with me, CR's? This is a Long Ass Process.

-Melissa

Comments

[Beth Spotswood]

Help. Ful.

[pixie sticks]

seriously - thank you. Do you maybe want to be Governor? pretty please??

[DJTennessee]

No Friday videos?!? Not on my comment watch.

The trailer for Werner Herzog's latest just delights the living fuck out of me. It's a remake of "Bad Lieutenant" set in New Orleans, with Nic Cage (I know), Xzibit, and Eva Mendes who I suppose is cute enough but doesn't do it for me as much as a few local bloggers I could mention.

I didn't know you could show ass and say "fuck" in movie trailers, but evidently now you can.

[Carol J]

I don't mean to be antagonistic, but is this the same Kris Perry who refused to testify before a legislative committee seeking testimony about Rob Reiner misusing tax dollars?

I just want to be sure about that - it's a little off topic, but I think relevant in terms of how most gays do not think this lawsuit should have been filed.

If Ms. Perry thinks she's above the law, then who amongst us should be surprised that she'd think to do something as strategically inane as this - oh, perhaps she's just in it for herself, not the rest of us...

[generic]

Boies & Olson are so goddamn sure of themselves.

I wish I shared their confidence.