Prop. 8 Decision Won't Necessarily Be a Slam Dunk.

Today, everyone's waiting for Judge Vaughn Walker to hand down his decision in the Prop. 8 case -- the federal challenge to California's gay-marriage ban. Conventional wisdom is that he'll overturn the ban.

However, Walker's ruling won't necessarily be a slam dunk for gay rights. The judge is bound by precedent and his decision needs to withstand the appeal process. Basically, there are three major questions Walker has to answer:

1. Do gays qualify as a protected minority?
2. Is there a good enough reason to restrict marriage to just straight people?
3. Is marriage -- in particular, same-sex marriage -- a fundamental right?

Ruling in favor of same-sex-marriage proponents on any one of these motions will likely lead Walker to overturn Prop. 8; he needn't find in favor of Boies and Olson on all of them.

The least controversial thing he could do would be to rule that there is no good reason to restrict marriage to straight people (no. 2). This is what happened in another gay-rights case, Romer v. Evans, in which the Supreme Court struck down an anti-gay law in Colorado. Because of the Romer precedent, this would probably be the safest tack for Walker to take.

It would be more controversial for the judge to rule either that sexual orientation is a protected category (no. 1) or that marriage is a fundamental right (no. 3). Ruling that gays constitute a protected minority would open up the courts to a whole host of suits alleging discrimination and courts have not previously settled either of these questions, leaving any decision that rests on them open to the charge of judicial activism.

This is a somewhat stripped-down summary of the legal issues (for a more complete account, click here), but the broad point is that this probably won't be a slam-dunk ruling. Ultimately, everyone expects Walker to rule against Prop. 8, but how he does this will not only affect how the decision is perceived by those on both sides of the marriage debate, but how it holds up when it's appealed.

-- Gabriel Arana

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