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Politics

Proposition 8: If Judge Vaughn Walker's Ruling Stands on Gay Marriage, Who Will Be Allowed to Get Hitched?

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Fri, Dec 3, 2010 at 8:30 AM

click to enlarge U.C. Davis law professor Vikram Amar
  • U.C. Davis law professor Vikram Amar
So let's say that U.S. District Court Judge Vaughn Walker's ruling on Proposition 8 stands as it goes through the appeals process and the 2008 ballot measure that banned same-sex marriage in California is found to be unconstitutional. Will that decision apply to all gays and lesbians? Or just to the two couples who filed the lawsuit?

U.C. Davis law professor Vikram Amar has been going around and telling anyone who listens that Walker's ruling may only apply to the two couples who sued in federal court. U.C. Irvine School of Law Dean Erwin Chemerinsky thinks Amar is full of hogwash.

As the long-anticipated U.S. Ninth Circuit Court of Appeals hearing approaches on Monday, December 6, court observers in the Prop. 8 case have focused on such issues as the legal standing of the pro-Prop. 8 legal team and the merits of Walker's decision.

But pro-Prop. 8 forces have argued that even if they lose in court, Walker's ruling should only go for plaintiffs Kristin Perry and Sandra Stiers and Paul Katami and Jeff Zarrillo. Professor Amar backs up this notion, essentially reasoning that the Prop. 8 lawsuit is not a class action lawsuit.

Amar has been getting some media attention with this legal angle, but on an instinctual level, it seemed wildly off base to us. So we asked noted constitutional lawyer and scholar Erwin Chemerinsky what's his take on Amar's opinion.

Chemerinsky immediately wrote back in an email:

"The fact that it is not a class action suit is irrelevant. If the court finds that Prop. 8 is unconstitutional, then gays and lesbians would have the right to marry in California. If the court dismisses because the supporters of Prop. 8 lack standing to pursue the appeal, then Judge Walker's ruling stands. If the court finds standing and reaches the merits and affirms, then Prop. 8 is invalid and gays and lesbians can marry."

Chemerinsky covered all the bases on that one. Now let's hear what the appeals court judges have to say. You can watch the hearing on C-Span, which starts at 10 a.m.

Contact Patrick Range McDonald at pmcdonald@laweekly.com.

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