As you’ve surely heard by now, Judge Vaughn Walker issued a ruling last week striking down California’s Proposition 8 on equal-protection grounds. You might also have heard that Argentina has legalized same-sex marriage and that a Mexican court upheld a marriage-equality law in Mexico City, rejecting a challenge by the conservative Calderon government.
Of course, all three of these victories are cause for jubilation. The wins in Mexico and Argentina are particularly welcome, insofar as they show that marriage equality isn’t just a cause of the wealthiest nations but is taking root throughout the developing world. They also show the weakening power and fading influence of Christianity in general and the Catholic church in particular – which, to no one’s surprise, continues its resolute march in the wrong direction by tenaciously opposing these decisions. Meanwhile, in California, conservatives who scream and gnash their teeth over “judicial activism”, by which they mean any court ruling they disagree with, now have a new villain: the notorious hippie liberal who first nominated Judge Walker, Ronald Reagan.
There’s little question that the relatively liberal Ninth Circuit will uphold Judge Walker’s decision, but the real question is how this ruling will fare at the Supreme Court. It’s safe to assume that there are four votes in favor of overturning the ruling no matter what happens – the anti-marriage-equality side could come into the court dressed in clown costumes, conduct their cross-examinations in mime, and deliver a closing argument consisting solely of honking a bicycle horn, and Scalia, Roberts, Thomas and Alito would vote in their favor.
But Justice Kennedy, the swing vote, is almost impossible to predict. Although he’s a conservative Catholic and refused to enforce the separation of church and state in some truly horrendous decisions, he also joined the majority in Lawrence v. Texas, the decision striking down sodomy laws as an infringement of the right to privacy. It’s just barely conceivable that he might actually rule the right way on this.
However, it’s hardly desirable to stake the fundamental freedoms of millions of Americans on the whim of a single justice; we might as well trust a coin flip to deliver equality. I think there’s a better way of defending this decision.
Whatever happens at each stage, it will take years for this case to work its way up to the Supreme Court. If Judge Walker refuses to stay his ruling, and if the Ninth Circuit upholds that, there could be tens of thousands of same-sex marriages in the meantime throughout the Ninth Circuit’s jurisdiction. By the time the case reached the Supreme Court, it would be a fait accompli. It would be so firmly established that I can picture even a conservative Supreme Court being loath to overturn it. In that case, I could imagine the court simply refusing to hear the issue, letting Judge Walker’s decision stand but not applying it to the rest of the nation.
The other possibility is that we could fight for a new ballot initiative. After all, Prop 8 passed by only a small margin, and the percentage of the electorate supporting same-sex marriage is growing every year. If California passes a new constitutional amendment repealing Prop 8 and affirming Judge Walker’s ruling, the issue would be moot. Again, this would most likely result in a split where same-sex marriage was legal in California but not elsewhere. This isn’t ideal, obviously, but it might be important strategically. Every victory we win, every legal beachhead we establish, builds momentum for the cause of equality and proves to wider society that the doomsday shrieking of the religious right is a heap of contemptible lies.
And the same holds true in Mexico City and Argentina: the more places that same-sex marriage moves into the mainstream, the more it will become familiar and accepted. More and more, people are getting the chance to see for themselves that gay and lesbian couples are normal human beings, deserving of the same rights as everyone else, and religious prejudice is weakening. Every fight we win sets the stage for further victories, and brings us ever closer to the time when true equality is the rule everywhere, not the exception.