During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.
Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.
It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?
No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.
Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.
There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.
So I think that whatever happens, this trial has been a net win.
There’s a Martin Luther King quote that Obama has often used in the last couple of years:
The arc of history is long… but it bends towards justice.
In the long run, we’re moving toward equality.
I’m probably going to reveal myself as a complete idiot here, but as I’ve attempted to read through the transcripts I don’t have the fainted idea what the plaintiffs are trying to prove.
Well, they’ve proved William Tam is an idiot. But I really can’t figure out what he has to do with the case. I’m not sure what evidence standard Judge Walker is using, but I think it’s clear how he’ll rule, the only question to me is what the Ninth Circuit does on appeal. It’s almost like the strategy is to bring out all kinds of evidence knowing the decision is going to be tossed, but making the bet that bringing out the evidence is worth it.
I just can’t wade through the transcripts. It’s too choppy.
It seems to me like they’re angling for a Brown v. Board of Education argument that allowing gay couples civil unions instead of marriage places them in an unconstitutionally inferior position relative to straight couples. It just seems to me a really convoluted way to get there.
Okay, I’ve written a new post explaining what the trial is basically all about.
One aspect that hasn’t been highlighted is how can it be legal for those 18,000 same-sex couples to be legally married, and then additional same-sex couples cannot be married. This seems absolutely ridiculous.
I agree, Homer, it’s pretty weird.
Thanks for reiterating that point about a Supreme Court loss. In California we could still re-amend our constitution and repeal Prop 8 by the same crazy ballot initiative process that got us here in the first place.