I just looked out the window, and the sky doesn’t appear to be falling: Proposition 8 has been overturned by a federal trial court in San Francisco. The title of this post refers to the fact that this matter is far from over, since, regardless of the result, the losing side was certain to appeal, first to the 9th Circuit Court of Appeals, and eventually to the U.S. Supreme Court, in what could turn into the landmark civil rights case of a generation, on par with Brown v. Board of Education, or Loving v. Virginia.
If you’re interested, you can read the opinion here. It’s well over 100 pages, and spends the majority of that discussing the court’s factual findings, and doesn’t get to the legal conclusions until close to the end. If you have the time, it’s a fascinating read.
It’s important to note that, in addition to making legal conclusions, Judge Walker also presided over a trial, which involved numerous questions of fact. In order to determine if there is any factual basis supporting the claim that same-sex marriage will harm anybody, a trial was necessary. Both parties presented factual evidence to bolster their positions. Though, reading the court’s finding of facts, it’s clear that the supporters of same-sex marriage were able to present far more evidence in their favor than their opponents. In fact, despite numerous opportunities to present any factual evidence that allowing same-sex couples to marry would damage opposite-sex marriages, or society as a whole, opponents of same-sex marriage were unable to present anything to that effect.
On the other hand, the proponents of same-sex marriage presented ample evidence to show that denying marriage rights to same-sex couples has the very real effect of perpetuating the notion that gays and lesbians are somehow second-class citizens.
Based on all of this, the court found that the state of California had absolutely no reason to deny marriage to same-sex couples. The fact that Proposition 8 was enacted by voters, the Supreme Court has repeatedly noted, is largely irrelevant, since basic constitutional rights are not subject to the whims of the majority (in this case, a bare majority).
So, what happens from here? Well, we can be sure that a lot of stuff is going to happen with respect to this case. Exactly what that stuff will be, however, is pretty hard to know. It’s clear that the endgame for both sides is to fight it out in the U.S. Supreme Court.
It’s not even clear what will happen in the short term with respect to same-sex marriage in California. The court issued an injunction telling California that it has to stop enforcing Proposition 8. Because the Governor and Attorney General of California are both publicly opposed to Proposition 8, they’ll probably be eager to comply. However, because the issue is so controversial, and the final outcome so uncertain, Judge Walker has already issued a temporary stay of his own injunction, preventing it from going into effect. This stay will remain in place at least until the parties have an opportunity to argue that it should or should not be lifted. However, it seems most likely to me that the stay will remain in place at least until the 9th Circuit Court of Appeals has decided the issue.
It’s possible that they’ll issue their own stay, pending a decision. Now, the 9th Circuit has a reputation for being fairly liberal, but it’s actually quite diverse, being home to some of the most conservative, and the most liberal, judges in the entire federal judiciary. When it comes time for them to decide this case on the merits, it will be before a 3-judge panel, whose members will be chosen at random. Needless to say, what the ideological composition of that panel will be is anybody’s guess.
And after that, comes the final showdown – the Last Boss: The Supreme Court. Whatever happens at the U.S. Supreme Court, it will be a turning point in the same-sex marriage debate. If they overturn Judge Walker, and find Proposition 8 constitutional, it’s likely that same-sex marriage will be shut out, at a national level, for at least a generation. However, it’s likely that, several years down the road, a large number of states will already have decided to allow same-sex marriage, which would render the finding of a federal constitutional right to same-sex marriage less important.
And because this case will probably take at least a few years to get to the Supreme Court, it’s possible that California voters might repeal Proposition 8 in the interim, rendering the entire case moot.
But if SCOTUS does decide this case on the merits, what is the likely result? Well, that’s a difficult call. Assuming that the ideological makeup of the court is similar to it is now, when this case gets there, it could go either way. Chances are that the decision will be 5-4, with Justice Kennedy being the swing vote. The Supreme Court, in the past, has not been unsympathetic to gay rights by any means (see Lawrence v. Texas and Romer v. Evans), but this is a whole different ball game. While many people, including myself, would love to see marriage equality instituted across the country, the Supreme Court will understandably be wary of overturning the constitutions or laws of over 40 U.S. states.
However, there are plenty of the times when the Supreme Court has, and should, gone against prevailing public opinion. In my view, this is definitely one of those times.
In the end, it’s going to be a long, interesting road before this particular case reaches a final resolution. And in a broader sense, the debate over same-sex marriage is likely to go on long after this case is decided, whatever the final resolution may be.