What’s Brewing: Key Prop 8 decision coming; marriage ban advances in Ind.; Gaga hatefest

Your weekday morning blend from Instant Tea:

1. The California Supreme Court is set to consider today whether it believes Prop 8 supporters have legal standing to defend the same-sex marriage ban in federal court, after state officials refused to do so. The U.S. 9th Circuit Court of Appeals, which is currently reviewing the case, has asked the California Supreme Court for an opinion on the matter. And the decision about standing could determine whether the Prop 8 case applies only to California or affects same-sex marriage throughout the country. In other words, this is kinda big.

2. If and when same-sex marriage bans are ultimately declared unconstitutional by the U.S. Supreme Court, Indiana apparently wants to be one of the states that was on the wrong side of history. Indiana’s newly Republican-dominated House voted overwhelmingly Tuesday to place a constitutional amendment on the ballot that would ban not only same-sex marriage, but also civil unions and domestic partnerships. The good news is the amendment can’t actually appear on the ballot until 2014 because it must first be approved by two separately elected legislatures. But in case it hadn’t dawned on you yet, those tea party nuts were lying to your face when they said they only care about fiscal issues.

3. Some gays are turning against Lady Gaga and rejecting their own so-called anthem, “Born This Way,” according to various media reports including this one. But the most amusing critique we’ve seen thus far comes from the Zeitgeisty Report, which suggests that Gaga HATES gay people: “Take for instance the very first part of the song where Gaga comes right out and accuses gay people of having paws instead of hands or feet. Yep, Lady Gaga officially thinks gay people are animals.”

—  John Wright

Prop 8 oral arguments are today, but if you’re not a lawyer it ‘might be like watching paint dry’

Ken Upton
Ken Upton

With DADT repeal all but dead, we turn our attention to California, where oral arguments are set today in the federal challenge to Proposition 8.

We’ve got a full preview and viewer’s guide over on the main page, and the two-hour proceedings will be broadcast live on the CSPAN website beginning at noon Dallas time.

But we also inquired of Ken Upton, a senior staff attorney at Lambda Legal in Dallas, as to what he’ll be looking for this afternoon. Here’s what Upton said:

I’ll be particularly interested in the panel’s questions surrounding standing (the constitutional principle that says only people actually affected or injured by the dispute have a right to litigate it, not people who merely have an opinion about it in a general sense). Courts can be willing to turn to this doctrine when appropriate to dispose of cases they aren’t ready to decide on the merits.

As for the second session, I’m interested in how the panel reacts to the evidence at trial and what weight they choose to give it. The marriage cases that were lost (e.g., NY, WA, IN, AZ) all resulted from a court willing to allow the government to speculate about the justifications for excluding same-sex couples from marriage. The victories happened when courts required the government to give real justifications that are grounded in fact, not theories made up after the fact based on rank speculation or outdated stereotypes. That will be the key here. How will the panel treat the evidence (which was overwhelmingly supportive of striking down Prop 8)?

It will be fun to watch (for lawyers, at least — might be like watching paint dry for many non-lawyers).

—  John Wright