Tuesday, February 7, 2012
Yay! What Are We Cheering For!
So, the 9th Circuit overturned Prop 8.
What does this mean? Probably not much today. I think the real test is whether the whole 9th Circuit agrees to hear the appeal. If it goes to the whole panel, I think it's upheld.
The question is, do the Supremes take on an appeal?
I think they would avoid this if at all possible.
The ruling strictly applies to California. Because Prop 8 overturned existing marriage equality, it was ruled discriminatory under the 14th Amendment. The ruling says nothing about whether existing restrictions against same-sex marriage are violations of equal protection. Because this ruling is so narrow - and should it be upheld by the entire 9th Circuit - then the Supremes risk butting their noses in where they can only harm themselves.
Politically, one of the motivating factors for liberals upset with Obama is making sure he's around for another four years to nominate a new justice should Ruth Bader Ginsburg succumb to her cancer or Clarence Thomas drown in his own spleen and bile. This would only remind them of what's at stake. Also, the old wedge issues are failing to work as well as they did five or six years ago.
From a legal standpoint, it's difficult to see how Scalia can want to put his original intent, state centered federalism on the line here. I don't think ideological consistency is his biggest attribute, and he has shown a willingness to shift his positions before, but this is not something I imagine he wants to touch. Similarly, Kennedy would seem to be naturally squishy in this. Roberts, of course, is a closet case, so who knows how he would rule.
I was having lunch with a filmmaker who was awaiting word on the ruling. His husband and he were married during the brief window before Prop 8 went into effect. Sadly, this doesn't really change things for him or anyone else in California who wants to marry someone of the same gender.
The courts will grind slowly on. But, in the end, the arch of the universe - as some guy said - bends towards justice.