Saturday, August 7, 2010

We Lost . . . So Don't Appeal!!

There’s an old legal (not lawyer) joke, that I’ve updated. . . . . . . .

Long non-jury trial. Waiting for judge’s decision.

Weeks later, lawyer in New York.

Client on vacation in Florida.

Finally, lawyer sends client two word text message: “Justice triumphed.”

Client responds: “Appeal at once!”

An understandable reaction. You lose a case, you appeal.

But not always.

The will of the voters of California regarding same-gender marriage—a policy choice properly belonging, under the Tenth Amendment, not to the federal courts but to the states—has been thwarted by a single federal judge in a single federal district (in Northern California).

Why do I italicize single (twice)?

Because California’s Proposition 8 has been declared unconstitutional in only one of the 94—that’s right, 94!—districts in the federal court system. Yes, 94!

Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional under the Equal Protection Clause of the 14th Amendment applies only in his district. It is not worth the paper it’s written on in the other 93 federal districts.

That said, the disgruntled losers in Walker’s court are ready to kick butt: “We’re going to appeal,” they holler. “Up to the Ninth Circuit,” they promise.

Brilliant!

The United States Court of Appeals for the Ninth Circuit covers fifteen federal districts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington (State) and two territories (Guam and the Northern Mariana Islands).

So let’s play it out.

The Prop 8 losers appeal to the Ninth Circuit.

If they win there, the Ninth Circuit reversing Judge Vaughn, Olson and Boies take the case to the Supreme Court of the United States. And a loss there by the opponents of same-gender marriage turns the decision of a single judge in a single federal district into the law of the land—despite the Tenth Amendment and the will of California voters.

But let’s say the Prop 8 losers’ appeal to the Ninth Circuit fails, and that court affirms Judge Vaughn. Then the losers take the case to the Supreme Court. And a loss there by the opponents of same-gender marriage turns the decision of a single judge in a single federal district into the law of the land—despite the Tenth Amendment and the will of California voters.

I am saying plainly and emphatically that the Vaughn-court losers should pack their bags and go home—and not turn their minor-league loss into yet another repudiation of the Tenth Amendment at the hands of the Ninth Circuit and/or the Supreme Court.

I can’t contact those lawyers, but perhaps someone who reads this essay can. If so, I urge you to remind them that there is much to lose by losing again . . . . . and again.

But there is much to gain by not appealing: erasing completely all the effort and money expended by the anti-Prop 8 forces—all of it!—by leaving their consequence quarantined in a single district in Northern California.

Ask the Prop 8 supporters’ lawyers, “What price glory?”