Thursday, August 5, 2010

Celebrate Victory but Prepare for the Worst

Yesterday’s decision by Judge Vaughan Walker in the case of Perry v Schwarzenegger (declaring that California Proposition 8 limiting marriage to one man and one woman is unconstitutional) is not only a victory  for gay Americans but a reaffirmation of the rights guaranteed by the Constitution and is a victory for all of us.

Reading the judge’s 138 page decision (and wading through the legal mumbo jumbo), it is obvious that the proponents of marriage discrimination had a weak case.  If you define “credibility” as relying on facts, then the “expert” witnesses who testified against marriage equality were incredibly incredulous.  One wonders why they presented such a weak defense of their position, until you realize that there is no defense for discrimination. When pressed on cross-examination by the unlikely barrister duo of Boies and Olsen, the Proposition 8 supporters conceded to most of the gay marriage proponents’ key points including the disparity between domestic partnership and full marriage and also including the undesirability for religious organizations to impose their tenets on minority groups.  Given the weakness of the side favoring marriage discrimination, it is now clear why they fought (and won) to prevent these proceedings from being televised.

Eventually, this case will be decided by the US Supreme Court.  No doubt, a sane and rational Court would uphold Judge Walker’s well thought out decision.  But the words “sane” and “rational” cannot be applied to a Court that declared that a corporation has all of the rights but none of the responsibilities of a flesh-and-blood person as the Court did in the Citizens United case.

The lineup of the Court is:
  • Four extreme right-wing activist judges: Roberts, Alito, Thomas, and Scalia
  • Four moderates described by the press as liberal: Ginsberg, Sotomayor, Breyer, and Kagan
  • One swing vote: Kennedy 

So conventional wisdom is that the decision will be made on a 5-4 vote.  There is no doubt in my mind that Roberts, Alito, Thomas, and Scalia will ignore the Equal Protection clause of the 14th Amendment.  Justice Kennedy (whose vote in Bush v Gore was the deciding factor that initiated the Bush presidency) will be the person who vectors the decision one way or another.

(It should be noted that in the last great civil rights decision, Brown v Board of Education, the divided Court, after some internal politicking by the anti-segregation justices, eventually came out with a 9-0 decision declaring segregation unconstitutional.  This was an important factor in the continuing struggle to institutionalize equal rights for African-Americans.)

While a 5-4 decision overturning Judge Walker’s decision is possible, there are many other perils standing in the path of marriage equality. 

One of the moderate justices could vote to overturn.  Justice Sotomayor is Catholic and Hispanic.  Catholics have been hostile toward equal rights for gays and lesbians, and support from the Hispanic community for marriage equality is virtually non-existent.  Will the new justice put the law in front of any personally-held beliefs?

Two of the moderate justices could become unable to fulfill their duties through sickness or death.  Justice Breyer is 71 and Justice Ginsberg is 77 and in poor health.  No doubt, the Tea Party would filibuster and throw other roadblocks toward any Obama appointee until marriage equality is decided, and this would set up a 4-3 unfavorable decision.

So celebrate the victory in California, but recognize that the fight is not over.  The Tea Party will use marriage equality as a wedge issue to get out the conservative vote in the mid-term elections, and of course both sides will use this as a fundraising vehicle.  A Supreme Court decision to reverse Judge Walker would be a major setback to civil rights, and the only possible remedy would be a generation-long fight for an Equal Rights Amendment protecting not only women, but also gays and lesbians.

Cross-posted to Blue Jersey


  1. re: Justice Kennedy as the swing vote. 04 AUG TRMS guest constitutional expert/atty pointed out that the decision, besides having 80 findings of fact, framed the logic of the decision around a couple of Kennedy's existing SCOTUS decisions FOR rights.

    i am optimistic given the team and the ruling, it'll be 5:4 IF the SCOTUS even elects to hear the case, that is. Given the weight of the findings of fact against AND the lack of evidence 'for' Prop 'HATE', they may decide not to even hear it.

  2. Extraordinary Analysis! Thank you.

  3. I still don't understand why so many folks seem to forget that Justice Kennedy WROTE the majority opinions in Romer v. Evans AND Lawrence v. Texas. It is a no-brainer that he'll come down on our side.

  4. Good post but I'll take exception to a few points. The latest Field Poll here in CA showed that a majority of Catholics & Latinos support marriage equality; Evangelicals,those over 60 & Republicans ( often one & the same) are most opposed. It's true that the Catholic church plays a large cultural role for Latinos but its "moral" authority has been greatly diminished due to priest child abuse