Guest Post - Evan Wolfson

Evan Wolfson is the founder and executive director of Freedom To Marry.

What's Next In The Battle Against Prop 8?

Thursday kicked off another emotional rollercoaster for many California couples as U.S. District Court Chief Judge Vaughn R. Walker rejected a permanent stay of hisAugust 4th ruling striking down Prop 8, but allowed a grace-period for the Ninth Circuit appellate court to decide whether to grant its own stay or let marriages resume on August 18th. Both sides of this issue have filed their motions in response to Judge Walker’s ruling, and now the Ninth Circuit seems poised to rule on the stay before August 18th, perhaps as early as today.

If the Ninth Circuit denies the request for a stay, the anti-gay Prop 8 forces could then ask the United States Supreme Court to issue one. Such a request would be directed to Justice Anthony Kennedy, who could either rule himself or submit it to the full Supreme Court. There are several other permutations possible, including the Ninth Circuit issuing a stay while it considers the appeal, or quick denials all around leading to marriages resuming soon. We’ll have to see how it unfolds; hence, the nerve-wracking suspense and high emotions.

Meanwhile, though, there was a lot to celebrate in Judge Walker’s ruling.

Much like his initial decision declaring Proposition 8 a violation of the Constitution’s guarantees of equal protection and due process (the freedom to marry), Judge Walker’s ruling was thorough, solid, and smart. He noted that, once again, the Prop 8 proponents failed to show any evidence, or provide any clear explanation, of how they are harmed if same-sex couples share in marriage. Judge Walker noted, in fact, the state of California itself has said it doesn’t wish to appeal and doesn’t even want a stay. As Governor Arnold Schwarzenegger and Attorney General Jerry Brown put it, California has no interest in discriminating and marriage for same-sex couples “is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.” The Prop 8 proponents, who intervened to defend the law in Judge Walker’s courtroom, may not even have standing to bring an appeal, given that they are private citizens who have nothing to do with the administration of marriage and, as Judge Walker remarked in my favorite line, have not “alleged that any of them seek to wed a same-sex spouse.” Since they may not even have standing to drag out the case, the Ninth Circuit may conclude there is no appeal.

While emotions are high and the twists in the road are wrenching, we must not spend our time obsessing over the things we can’t control and should focus instead on what we can. Specifically, we can control whether we use every powerful argument and evidence assembled by Judge Walker to make the same powerful case for the freedom to marry in the court of public opinion that we are making in the courts of law. Courts don’t operate in a vacuum; creating a climate and momentum is as important to winning a court case as writing excellent briefs, and it is something we can all contribute to right now.

We don’t yet know how Prop 8 will ultimately fall – whether through this court case or by going back on the ballot as soon as 2012. The work we do now to solidify a majority in California by breaking our silence and asking the non-gay people in our life for support will maximize our chances of winning either way.

For the rest of us throughout the country, last week we racked up our first-ever nationwide poll showing that a majority of Americans now favor the freedom to marry and that the opponents of liberty and equal protection for gay people are in the minority. If we can persuade Bill Clinton, Laura Bush, and even the likes of Glenn Beck to make the journey from opposition to support, then we surely keep barreling down all three tracks of Freedom to Marry’s Roadmap to Victory, which calls for winning more states, securing a majority for marriage, and ending federal marriage discrimination. Whether we win back California next week, or have to keep working at it with one eye on the courts, one eye on the ballot, and both eyes on the prize, the momentum spurred by Judge Walker’s powerful ruling is ours to use in the nationwide persuasion needed now. Let’s use it.

-Evan Wolfson