John Culhane has authored a great piece on what the decision means.
If this court’s decision is ultimately upheld by the U.S. Supreme Court under the same legal theory, the result would be limited to California. Prop 8 would be thrown out and same-sex couples would be able to resume marrying there – but nowhere else. Why so narrow? Once again, it’s all about trying to get the vote of Justice Anthony Kennedy.
This line made me smile.
The crazy attempt to have Judge Walker disqualified because he’s a gay man in a long-term relationship received the backhand it deserved. The court telegraphed its view of this position during oral argument. Judge Smith (who dissented from today’s decision on the central constitutional issue) couldn’t see any difference between booting a gay judge in a relationship and disqualifying a straight, married judge from deciding the case if he had an interest in maintaining “the definition of marriage as it applies to his marriage.” And should judges married to someone of a different race not have been able to rule on anti-miscegenation laws? No one expected this argument to have any traction, and it didn’t. If the Prop 8 proponents are smart, they will leave this inane argument out of their expected appeal to the Supreme Court.
But the true genius of Judge Reinhardt’s approach is in the appeal to Justice Kennedy, the swing vote needed to affirm the appellate court’s holding. By giving the Supreme Court a narrower ground on which to affirm – and by using Kennedy’s own logic and language from Romer – the appellate court just gave the Supremes a way to avoid deciding the global issue of marriage equality – at least for now. They have only to decide that once the right to marry exists (and perhaps especially if it exists as a matter of state constitutional law), then a pretty damn good reason is needed to take it away.
Will this work? Who knows? But the odds of success just went way up – if only for Californians. The rest of us would benefit from the demise of Prop 8, though, too. About one in nine Americans lives in California. If the tipping point wasn’t already reached with the marriage equality victory in New York, a win in California should pretty much seal the deal.