As you've no doubt heard, yesterday a federal judge struck down California's Proposition 8, which outlawed marriages between same-sex couples. This is the first step in a process that will ultimately lead to Anthony Kennedy deciding whether gay people can get married. This decision wasn't a surprise to anyone who followed the trial -- the side defending Prop. 8 put on a pathetic case, calling only two (not particularly compelling) witnesses and making arguments they seemed to have no idea how to defend when those arguments were cross-examined.
Their biggest problem was that in order to justify constraining the rights of gay people, they had to explain the harm done to straight people's marriages when gay people are allowed to marry. And they just couldn't do it. This ended up being the factual basis on which the decision rested. And all their talk about how important and wonderful marriage is only reinforced the fact that denying it to gay people was a serious harm done to them, one that needed a very strong state interest to justify it. And they couldn't come up with that either.
Yet for all the skill of the lawyers who argued against Prop. 8, it will probably come down to how far Justice Kennedy has moved on this issue. We can say for sure that there will be four solid No votes on the Supreme Court against marriage equality -- Roberts, Alito, Thomas, and Scalia. We're less certain about the Yes votes, but let's assume that the Court's four liberals -- Breyer, Ginsberg, Sotomayor, and Kagan -- come around. That leaves Kennedy, something trial judge Vaughan Walker seemed to be well aware of. As Dalia Lithwick noted, Walker's decision included "seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law)."
Given Kennedy's prior findings, Walker's extensive findings of fact, and the fact that the attorneys carefully crafted their case just to appeal to Kennedy, you might think the justice would find himself inevitably led to uphold Walker's ruling and strike down laws banning same-sex marriage. But as we know, all lofty talk about the the Constitution and precedent notwithstanding, the Court is going to do whatever it wants. When it's even a marginally close call, they can find a legal basis for whichever outcome they prefer. What we don't know is what Kennedy prefers.
-- Paul Waldman
