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Prop 8 Chalk Advocacy found on Hollywood Blvd. after the CA Supreme Court Ruling | Photo by Tom Andrews/LAist
In a move that some feel is risky, Prop 8 will be tested in Federal Court Thursday when it will go before U.S. District Court Chief Judge Vaughn Walker in the Northern District of California, according to Karen Ocamb at The Bilerico Project.
Formerly lawyers who fought against each other in the Bush vs. Gore case, Ted Olson and David Boies have joined together to fight Prop 8. They will be asking for "a preliminary motion eeking a temporary and permanent injunction against enforcement of Prop 8 on the grounds that the state constitutional amendment violates the Due Process and Equal Protection clauses of the U.S. Constitution."
If approved, gay marriage could temporarily be legal until the a decision was made. However, California Attorney General Jerry Brown, who also believes Prop 8 should be stricken, is concerned about such a move. "Staying operation of Proposition 8, without the certainty of a final judgment as to its constitutionality, would leave same-sex couples, as well as their families, friends, and the wider community, in legal limbo," he said.
Brown, along with Gov. Arnold Schwarzenegger and counties of Alameda and Los Angeles, are defendants in the case, but none of them will defend themselves in court. Schwarzenegger also believes Prop 8 should be stricken.
Another worry is that a Supreme Court ruling in favor of Prop 8 could have a long lasting negative impact on the issue across the country, affecting state court rulings and at the ballot box. "These organizations, which have been fighting these battles for decades, reminded their community that it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia's sodomy law. That was fast for the Supreme Court," noted Former Nixon White House counsel John Dean at FindLaw.
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i'll keep my fingers crossed
How will LGBT really benefit?
Looking at the outcomes, for the LGBT community to take this to the Feds comes at a high risk. Keep in mind: there is no equal rights amendment on the federal level.
The ideal ruling for LGBT would change the Calif sup. court ruling to give a few extra months of homosexual marriage. If this happens, the yes on prop 8 community will appeal the decision to a more conservative appeals court and ultimately a conservative US supreme court. If it makes it to the US supreme court, they can go as far as reversing their decision for states rights on homosexual marriage.
In the end, the outcome will most likely uphold the current ruling on proposition 8 and keep states rights. It also might delay a proposition vote that would override prop 8 from 2010 to 2012 particularly if its appealed to a higher court. In the end, this might be the best thing for the yes on prop 8 since November’s election.