Prop 8 Gay Marriage Trial, Explained: Lez Legal Eagle Answers Your Lawfully Ignorant Questions

Have you been following our Prop 8 trial coverage? Perhaps you’ve wondered about the larger legal issues in the trial, or don’t understand why this one judge makes the decision, or what happens if we win, or what “suspect class” means. Well, we also have questions and don’t understand things! The trial is on pause until Tuesday, so we’d like to take this opportunity to drop some legal knowledge all over your beautiful bodies:

Meet Jessica, a real live lawyer! She’s about to blow your mind with facts and explanations like it’s her job because, incidentally, it is! Jessica works for a legal publishing company where she writes and edits articles that explain legal developments to people who didn’t go to law school. Aren’t you glad she gave up on her initial dream of becoming the world’s first dancing astronaut?

After reading this, you can probably join a law firm or run for Senate. At the very least, we hope you’ll be able to re-explain this Prop 8 stuff to your family and friends, which will make you look just as smart as Jessica.

This is just a little warm-up, a Q&A of questions that Riese had for Jessica. She’s writing a longer piece that will debut very soon.

Do you have questions for Jessica? Ask away  in the comments, and she’ll work it into her next piece!

Riese: There’s only one judge! Does he get to decide everything?

Jessica: At the trial court level (the first place a case is heard), one judge is standard. You only get multiple judges on appeal. (Most of the time, the cases that make headlines are already on appeal, and therefore have multiple judges). For now, one judge has all the power. But regardless of what this judge decides, this case will be appealed. Not all cases are, but clearly somebody is going to be unhappy with the outcome, and you can always appeal a trial court decision.

This doesn’t mean that everything in this stage will be thrown out, though. Everything has to be entered into evidence at the trial court level. On appeal, the attorneys will be arguing procedural matters and debating legal precedents, but these arguments will be grounded in the existing court record established at trial.

Because the case is in federal court in California, it will be appealed to the United States Court of Appeals for the Ninth Circuit (circuits are divided up by geographic region). The Ninth Circuit has been allotted 29 judgeships, and a panel of these judges will hear the appeal. Then it’s up to the panel: whoever gets the majority of votes wins.

Again, regardless of what happens at the circuit court level, this case will be appealed because someone is going to be unhappy. But the Supreme Court doesn’t have to hear the case. They get to choose. Sometimes they wait until several circuits have had a chance to weigh in on a controversial issue. Sometimes they just don’t want to touch controversial topics. Sometimes they’re too busy. Really, it’s entirely within their discretion.

Riese: Does the other side go next?

Jessica: Plaintiffs (our side) plan to wrap up their arguments by Wednesday. Then it’s the other side’s turn. And then we will collectively cry, because they’ll present their witnesses who will undoubtedly all be jerks and liars. (I’m not biased at all.)

Riese: Do the Prop 8 defenders actually believe what they’re talking about, or are they appointed by the state?

Jessica: That depends on who you’re talking about. The lawyers may or may not believe in anything aside from arguing. Lawyers are paid to be the strongest advocates they can be for a cause regardless of their personal feelings. Chances are, the lawyers that signed on for this also believe in the cause, but as long as the case is in progress, you’ll never know.

The defendants in this case are Governor Arnold Schwarzenegger and “Proposition 8 Official Proponents.” Schwarzenegger has said that he supports the lawsuit because he think the conflict asks important constitutional questions that should be decided by a court. In 2008, he encouraged Californians to vote no on Prop 8, and he also expressed hope that the California Supreme Court would overturn it.

California Attorney General Edmund Brown (who was originally named in the lawsuit) decided not to defend Proposition 8, which is an unorthodox move for an attorney general, because he believes it is unconstitutional and should be struck down. He’s no longer a defendant.

However, because no one from the state was really jumping up and down to defend it, the Yes on 8 people requested the right to intervene in the case. And they were granted that right. And yes…they believe in their cause.

Riese: Why, when we lost in May, might we still win this time?

Jessica: We’re asking different questions at different levels of the court. In Strauss v. Horton (the case from May), the court was examining the propriety of the process used to amend the California Constitution (and whether Prop 8 constituted an amendment or a revision). This time, the court is examining whether Prop 8 violates the U.S. Constitution — specifically the due process clause and the equal protection clause.

Jessica will be back later to give you a more in-depth legal analysis of the trial! Stay tuned, you’ll know so much more before this thing gets going again on Tuesday! And if you have questions, ask them in the comments! Go Team Totally Right!

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Jessica has written 16 articles for us.


  1. Whoever came up with the idea to have a smoking lesbian lawyer explain all the legal stuff deserves a medal. Brilliant idea.

  2. Huh… ok, I’ll say it once then shut up for a while. You guys are seriously on track to become the best website of all time. Just saying.

  3. THIS IS EXACTLY WHAT I NEEDED. thank you jessica for telling me things so that i’m no longer stuck entirely in modern jackass [] territory!

  4. i’d like to state the obvious by saying: I LOVE THIS. can’t wait for the big stuff.


    ::tiny voice::
    that’s what she said

    • I would’ve said TWSS for you, Laneia! But I’m glad you covered your bases. Obvs I am very excited for this, too!

  5. i’m glad you took up law instead of a dancing astronaut career…don’t astronauts dance inadvertently?

    in other news, did you know that “Jessica” is the name of an Australian television miniseries originally broadcast in 2004? according to Wikipedia, it is a heart-rending story of one woman’s remarkable fight for justice against enormous odds. i think the premise of this miniseries represents the great legal battle we are all trying to understand; thank you, jessica, for explaining this battle into words comprehensible by (most) humans! indeed, as einstein once wrote: the most incomprehensible thing about the world is that it is at all comprehensible.

    in other other news, do you have a twitter account? ;)

    • Twitter is the new pick-up. The hook-up of 2010. I wear purple velvet suits like Prince circa 1984 when I get on twitter. You know, for the babes.

    • wow, now even i understand it.

      The hell with your twitter. I think I’m going to skip to asking your phone number ;)

      Smoking Hot Lesbian Lawyer Jessica, your brain is pretty!

  6. Awesome idea Jessica! (or is smoking lesbian lawyer your new official title?)

    I have a few questions:

    1) What sort of timeline can we expect on this? For the decision/appeal/supreme court decision on whether or not to take the case.

    2) Assuming Team Totally Right prevails with no detours and the Supreme Court declares Prop 8 unconstitutional, would it automatically invalidate similar ballot decisions such as we have in Maine? What about DOMA? Would this decision mean that all states would automatically be required to grant marriage licenses?

    3) What if Team Totally Right wins the appeal in the circuit court and the Supreme Court refuses to hear the case?

    Thanks again!

    • 1) Timelines in a court case are really difficult to guesstimate. Any number of factors can speed things up or slow things down. That said, I believe one of our attorneys expected to be asking the Supreme Court to review it within two years.

      3) If Team Totally Right wins the appeal in the circuit court and the Supreme Court refuses to hear it, then Prop 8 is invalidated.

      2) The second question is a lot more complicated than the others. When the Supreme Court decides a case, they’re ruling on the particular matter. We have nine Justices, and each one will be called to rule for one side or the other.

      Presuming this case gets that far, the Justices will be deciding the specific issue of whether Prop 8 is unconstitutional. The ultimate consequences for other laws will depend on the rationale they use in reaching the results.

      Our attorneys are arguing two things (mostly). First, that Prop 8 violates the due process clause by denying gays and lesbians access to a fundamental right, the right to marry. Second, that Prop 8 violates the equal protection clause.

      To strike down Prop 8, we need 5 Justices to agree with us. But they could do this in any number of ways. We could have two Justices decide Prop 8 violates the fundamental right to marriage/due process clause, three different Justices decide that Prop 8 violates the equal protection clause, and four Justices decide that Prop 8 is perfectly constitutional – and that would be enough to win this case. But, this wouldn’t get us much reach beyond Prop 8, because we wouldn’t have a majority asserting that marriage is a fundamental right or that these sorts of laws violate the equal protection clause.

      If instead, we have five Justices who decide that Prop 8 is unconstitutional because it violates the equal protection clause, this will likely have broader implications for other laws in other states.

      For this case, it’s a matter of ruling for the plaintiffs or ruling for the defendants. But the scope of the ruling will be dictated by the rationale the Justices use in reaching their decisions. Does that make sense?

      • That does make sense so far, thank you!. May I continue the “what ifs” even though they’re reaching possibly 2 years into the future?

        Say we get what sounds like the ideal outcome- at least 5 justices in agreement for Team Totally Right on the same basis. Will each state then individually need someone to take each respective marriage ban to court citing the new precedent, or would the states be directed to or likely to take more direct action?

        • The Supreme Court (and any court, for that matter) only decides the case before it. So presuming the case makes it to the Supreme Court, they’ll decide whether Prop 8 is constitutional or not, but that’s all. They won’t direct any other state to take any particular action.

          After such a ruling, many states will probably take action, recognizing that a change is coming. But others may require a little nudging along through further court action.

  7. this is a great, great idea! even while a) it is too early for me to actually read it and b) i am too dumb to understand it.

    • If you can’t understand it, it’s because I’m not explaining it well enough, not because you’re too dumb. Wait until it’s no longer too early to read, then try it. If you have questions, I’m happy to clarify.

  8. This is the most helpful thing ever. I thought I was the only one who had basically no clue what in the hell was going on. Thanks!

  9. Great idea. There are so many different things happening at once in this case it’s kind of confusing.

    I have a question more about precedent than anything else. If the judge in the current case of Prop 8 rules in favor of the plaintiffs, then would this be considered legal precedence if someone in say Florida wanted to file a suit against their state for not allowing gay marriage?

    • Hello, I am not a lawyer (yet), but I wanted to take a stab at answering this. Jessica, please correct me if I’m horribly wrong!

      As I understand it, precedent works its way down. For example, when this is appealed to the Ninth Circuit Court of Appeals, their decision only affects the courts within that circuit. Florida wouldn’t be affected because they’re in the 11th Circuit. A Supreme Court decision creates precedent for all federal courts in all circuits (and for state courts when applying federal law).

      • What she said, mostly.

        Outside of the Ninth circuit, it would only be persuasive precedent. So, the Florida courts could consider it if they wanted, but they aren’t required to do so. (Based on my admittedly limited knowledge of the Florida courts, I’d say it’s probably pretty unlikely that they would).

  10. If Walker declares proposition 8 to be unconstitutional will marriage equality resume in California? What are his options?

  11. I love AS. Where else can you come on a Sunday morning and discuss dry humping on the same page as legal issues?

  12. Advocates of gay marriage are inadvertently saying that God was wrong for creating male and female beings. All mamals procreate through the cooperation of both male and female. But only one thing seems to be in the minds of these proponents of gay marriages – sex.
    It’s sick and nauseating for a man to desire another man for sex and for a woman to desire another woman. They need cure immediately.

  13. I’ve been hearing about Prop 8 but never really understood what it was. I know now that this is just one heartless idea from people who choose to be close minded. Although marriage is not my thing, and my country is a million light years away from ever recognizing same sex marriage, all my love and support goes to those who devote all that they have for this cause. No H8.

    I may be months delayed from reacting but thanks smoking lesbian lawyer!

Comments are closed.