Prop. 8: Bottom of the Ninth

At 1 P.M. today, the California Supreme Court ruled that the proponents of Proposition 8—the ballot measure that banned same-sex marriage in the state—have "standing" to defend the measure in court, even though the governor and attorney general refused to do so. For celebrity lawyer team Ted Olson and David Boies, this means their challenge will likely end up at the Supreme Court.

The history of this case is complicated—and the question facing the California court, narrow. After Judge Vaughn Walker ruled the ban on same-sex marriage unconstitutional in federal court last year, the case moved up to the Ninth Circuit Court of Appeals. When a state law is struck down by a federal court, it typically falls to the state attorney general to defend it. But then-California Attorney General Jerry Brown and Governor Arnold Schwarzenegger refused to do so, leaving the sponsors of the ballot initiative, ProtectMarriage, as the only ones left to defend the ban. The Ninth Circuit asked the California court for a recommendation on whether ProtectMarriage was entitled to defend Prop. 8 under California law.

What today's decision means for the marriage movement is that the scope of the Olson-Boies challenge to Prop. 8 just got a lot bigger. Had the California court ruled that ProtectMarriage was not entitled to defend the same-sex-marriage ban, the Ninth Circuit would again probably have followed suit and let the lower-court ruling stand. Gay marriage would again be legal in California, but this would be the end of the road for the Prop. 8 case.

Instead, by clearing this procedural hurdle, the Ninth Circuit is now poised to address the substantive arguments at the heart of the case: Is it in the interest of the state to discriminate against gay people? Do gay people constitute a historically marginalized minority group that qualifies for judicial protection? Does Prop. 8 violate the equal-protection and due-process clauses of the Constitution?

Once the Ninth Circuit makes its determination on whether the original decision striking down the law was right, the case will surely be appealed to the Supreme Court, which can either take it or not. Whether it does or doesn't is highly contingent on what the left-leaning Ninth Circuit decides: If it finds that Prop. 8 is in fact constitutional, reversing the lower-court ruling, the Supreme Court could decline to take the case, allowing the Ninth's Circuit decision to stand. However, if the Ninth Circuit agrees with the lower court, the Supreme Court will in all likelihood take the case; the ruling would create a conflict in the application of laws across the country—in California, gay people would have a constitutional right to marry while in Arkansas, they wouldn't. The Supreme Court's primary function is to resolve conflicts like these.

For gay-rights supporters, today's decision sharply raises the stakes of the court strategy. A Supreme Court ruling would have broad implications for the gay-rights movement, which is the reason established LGBT legal organizations were concerned when Boies and Olson filed the case in the first place. If the Court rules against them, the legal route for winning gay rights at the federal level will be shut for decades, leaving advocates of same-sex marriage to fight for marriage equality state by state, piecemeal. But if Boies and Olson manage to sway swing vote Anthony Kennedy, the federal government would instantly have to recognize gay people's right to marry—and the same-sex-marriage bans in all the state constitutions across the country would be invalidated.

When it comes to the Prop. 8 case, the overarching question that's plagued gay-rights supporters since its inception has been: Are we getting ahead of ourselves? You can answer two ways. If the fear is that a favorable ruling will inspire a Roe v. Wade-like backlash, the answer is "no." Most Americans now support recognizing same-sex unions, and support for gay marriage continues to rise, especially among young people (the level of public support and opposition for abortion, on the other hand, has been fixed for decades). The more reasonable fear is that the Supreme Court, unlike in Roe, is behind public opinion on gay rights; it was only eight years ago that sodomy was illegal in Texas. Gay-rights supporters have their hopes pinned on Kennedy, who wrote the majority opinion in the case that decriminalized sodomy, Lawrence v. Texas. It may be disconcerting for the fate of the marriage movement to rest in a single justice's hands, but we'll only know in hindsight—once the decision comes down—whether Boies and Olson were wise to bring the case.

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