I have very, very mixed feelings about Judge Walker's historic decision holding California's Proposition 8 unconstitutional. On the one hand, it represents judicial review at its best, remedying the exclusion of an unpopular minority from a fundamental right for irrational reasons. Strictly on the merits, as Gabriel discusses so well below, the decision is cause for celebration.
But the district court is merely the first stage in the appellate process, and the lawsuit was strategically foolish. I should emphasize that I haven't suddenly come to accept contrarian nonsense about how justice should be deferred until an unspecified time in the future in which social change can be magically achieved without conflict. If I thought there were a good chance that this ruling would be upheld by higher courts, I would be ecstatic. But there's the rub: I have a very hard time believing that the Supreme Court would let a circuit-court opinion upholding the invalidation of Prop. 8 stand without review, and an even harder time believing that the Supreme Court wouldn't reverse Judge Walker. And a Bowers-type negative precedent would not only foreclose future federal lawsuits for longer than necessary but make it more difficult to prevail in state courts as well.
This isn't to criticize Judge Walker -- it wasn't his choice to bring this suit, and he did the right thing. And maybe I'm wrong, and the case will stir Anthony Kennedy's sporadic conscience. But I have the sinking feeling that this will not end well.
--Scott Lemieux
