Those who followed the lawsuit against Proposition 8 (California’s anti-same-sex-marriage state constitutional amendment) are not surprised that Judge Walker ruled it unconstitutional (federally), based on how the trial was going. By the time you read this, the appeal may already be filed. However, I do think there are a few surprises in store as this case and the issue go forward.
For starters, and I’ll admit this is just a guess, the Supreme Court will uphold Walker’s decision, although perhaps not all of his reasoning. I see four votes (Ginsberg, Breyer, Sotomayor, and Kagan) who will likely go with some form of Walker’s logic. Anthony Kennedy, by contrast, may take a different tack. Based on this analysis of Lawrence v. Texas from CATO, I suspect Kennedy will simply ask if the Golden State has a compelling reason to restrict marriage, answer no, and use the Amendment 9 (via 14) to knock it down. Given that the Amendment 9 argument can be just as powerful against, say, a federal mandate to buy health insurance, none of the aforementioned Democrat-appointed four will follow Kennedy, but I still see five votes against Proposition 8 (or, if it gets there first, the Defense of Marriage Act).
Of course, a 5-4 court decision can easily enflame political campaigns for a constitutional amendment or become major issue in presidential elections for years. However, I don’t see this issue reaching that apex in the political realm. For starters, only one issue has ever managed to survive the full brunt of the judicial branch for over three decades – the abortion issue. In nearly every other situation, the Court’s ruling became (if it wasn’t already) the consensus national view (Dred Scott, IMHO, is the exception which proved the rule). Whatever one thinks of this issue, it does not have the power of the abortion issue (no one will die from Walker’s ruling).
Finally, this will hurt the Democrats – badly – but for reasons they don’t see coming. For starters, while the decision works its way through the courts, little will change politically. Contrary to conventional wisdom, Bush the Younger’s decision to endorse the Marriage Amendment did little to change the dynamic of the 2004 election; he neither fell behind John Kerry nor established greater distance. The only state where it had measurable effect was Iowa (flipped to Bush in 2004), which was nearly cancelled by the loss of libertarian-heavy New Hampshire. Moreover, this decision will not reduce the debt one cent, nor will it add one job to the economy (even the lawyers would still be employed – although the appellants would be appellees). The issues on the tops of voters’ minds have not moved, and the Democrats are in as much trouble on them today as they were yesterday.
Furthermore, as it becomes clear that Walker’s decision (or, as it will probably be better known – Kennedy’s opinion) will set the tone, the politics of several issues will change. Shorn of a perceived internal discrimination (via sexual orientation), marriage as a tool for external discrimination may return to vogue (in adoptions, inheritance, extension of job benefits, all of the places where marriage was removed as a marker in recent years).
Meanwhile, here’s something else to consider: just as marriage becomes legal for gay couples, the Democrats who (mostly) supported it will be defending the reimposition of the marriage tax penalty upon them.
Oops.
Long-term, the Democrats will probably see a steady erosion of support from gays and lesbians, especially if (as I expect) this becomes swept into the discussion of the rise of Wahhabism in America. Lest anyone think this far-fetched, consider the Netherlands, where Pim Fortuyn spoke out against Wahhabist bigotry against gays and became an overnight sensation, then the lead spokesman against radical Islam, then a martyr to the anti-terrorist cause, and finally the ghost that has guided the Dutch electorate to choose what would be the most right-wing government in the country’s history. I don’t expect a carbon copy of that story in America, but anything even remotely close could dramatically effect the political behavior of a group that exit polls have put anywhere between 5% and 7% of the voting populace.
By contrast, while there will certainly be a large number of Republicans and conservatives who will still try to overturn this, the life issue will keep the overwhelming majority of them within the GOP.
Now, I could be wrong on all of the above; I would prefer this issue decided within the elected branches of government rather than the appointed one. Still, this is what I see happening: the left may very well rue the day Walker handed down his decision.
