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Prop 8 Case: Back To Federal Court

November 18, 2011

When I last posted on the California marriage equality case, Perry v. Schwarzenegger, the Ninth Circuit sent it to the State Supreme Court for a determination on standing.  That sideshow is over.  The California Supremes have said that the Prop 8 proponents can challenge the decision, which means that the Ninth Circuit now gets it back to deal with the merits.  And by merits, I mean the appeal of the result of Judge Walker’s trial, which was a complete rout

This article has some good analysis and so does Alvin McEwen at Pam’s House Blend, and I won’t repeat it.  I’ll just double down on my prediction:  2-1 or possibly even 3-0 at the Circuit for marriage equality (even NOM is predicting that Prop 8 will lose at the Circuit), followed by a trip to the Supreme Court.  With the election coming up, no judge will retire if they can avoid it unless the President in power is one whose positions they generally agree with, which means no vacancies that are likely to matter unless a judge dies or is totally incapacitated.  The current court is 4-4 with one up for grabs; my read on Kennedy, who authored landmark pro-GLBT opinions in Romer and Lawrence despite being otherwise conservative, is that he sees this as a matter of being on the right side of history and will not allow his legacy to be defined by having been on the wrong side of it.  To my mind, the only way this goes the wrong way is if a Republican takes the White House and one of the four relative liberals or Kennedy has to be replaced. 

And remember, the facts on the ground are going the right way.  The longer it takes, the more states have marriage equality and married same sex couples, and the clearer it is that marriage equality doesn’t actually harm anyone’s legally protected interests.

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