18 August 2010

Where the Prop. 8 battle goes from here

The question of where the Proposition 8 legal fight goes after Judge Walker's recent ruling is a vexed one. Many have assumed that the best-case scenario is an appeal by the pro-8 camp to the Ninth Circuit and then the Supreme Court, on the assumption that Walker's powerful and carefully-crafted ruling would prevail at each step. If so, the Supreme Court would be declaring laws against gay marriage unconstitutional nationwide, bringing marriage equality to the whole country at a stroke -- a victory spiced by the fact that it was the other side's own efforts, in the form of Proposition 8, which served as the ultimate catalyst for the final defeat of their cause.

But it's a risky gamble. No one can be sure in advance what the Supreme Court would do. The assumption is that Justice Kennedy would provide the critical fifth vote -- Walker's own ruling makes use of arguments from Kennedy which he would presumably still endorse -- but who can be sure? And a defeat at the Supreme Court would embolden the bad guys, while implicitly legitimizing their tactic of making civil rights subject to the will of the electorate (and that could take the country, or parts of it, in some very frightening directions, well beyond gay issues alone).

Recently the possibility has arisen that the plaintiffs' appeal could be rejected on the technical grounds that they lack "standing" in the case. If so, the most likely result would be that the matter proceeds no further; Walker's ruling would stand, gay marriage would be legal in California, but there would be no direct effect on the rest of the country. While this might seem disappointing in comparison with a nationwide win at the Supreme Court, it would still be an important step forward; victory in the largest state would inspire activists elsewhere and help normalize the concept of gay marriage in the mass public mind, while Walker's ruling would remain in force to be cited in legal battles elsewhere.

More on these issues is here. I would note as well that a Supreme Court fight in the very near future might be less promising than one in the longer term; assuming Obama is re-elected, for at least the next six years the composition of the Court will not get any worse, and may get better. (Obama arguably has a better record on gay issues than most realize.) There is also the slight possibility that the plaintiffs, if they lose again, might choose not to appeal to the Supreme Court, preferring not to risk an unfavorable ruling and nationwide defeat.

But looking at the range of legal possibilities and the evolution of public opinion, it's clear which side has the momentum. Within five or ten years, one way or another, this fight will be over.

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