Accidental Blogger

In case you somehow failed to hear the news, a federal trial court held that California's Prop 8 (the ballot initiative overruling the state supreme court's ruling that the state constitution required the availability of same-sex marriage) is unconstitutional. 

I only skimmed the legal-conclusions section of the opinion, but it looks like it's a much broader ruling than just saying that Prop 8 is unconstitutional because it merely reflects animus and a desire to harm a politically unpopular minority (homosexuals) based on, e.g., the way it was passed.  Instead, it looks like the court is saying that the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution require equal availability of same-sex marriage and opposite-sex marriage.

So, yeah, kind of a big deal.  It's basically the same opinion as all the ones from the state courts (Massachusetts, Connecticut, California, Iowa, etc.), except decided on federal constitutional grounds rather than state constitutional grounds.

The interesting question is what happens next.  I happen to think it's the more persuasive legal analysis, but at the moment the question is legally under-determined.  I have no idea what the court of appeals will decide, although that it helps that it's the (relatively liberal) ninth circuit.  At least if the court of appeals affirms the decision on anything but an extremely narrow rationale, the Supreme Court will definitely take the case.  And this isn't a legal case in the traditional sense — it's a political case.  It will be fascinating to see what happens, with same-sex marriage proponents needing Justice Kennedy to have any chance of winning.

Losing would obviously be a political setback, and at this point, the general consensus among the U.S. population hasn't shifted enough, which hurts the odds in Court.  This doesn't address the real possibility that the Court holds that civil unions/domestic partnerships are constitutionally sufficient, and then the availability of those becomes required by federal law… which wouldn't be an awful mixed bag.

But there's also a chance that winning would be a political setback.  There's a good argument that Roe v. Wade and its progeny actually enhanced public opposition to abortion rights: Before the Constitution mandated the availability of abortion, people didn't really care.  It wasn't a major issue.  The difference in this case is that people plainly do care about same-sex marriage, so the involvement of the judiciary might not get people more worked up than they already are.

I don't know.  It will be interesting to see what happens, I suppose.  And 40 years from now, people will look back and wonder how our society thought it was okay to create unequal classes of citizens and deny people basic civil rights.