Judge Vaughn Walker's refusal to "stay" -- that is, prevent going into effect -- his order reinstating gay marriage in California will allow same-sex marriages to go froward in California later this month (unless the Ninth Circuit Court of Appeals issues its own stay). While the decision caused gay-rights supporters to celebrate, reinstitution of marriage equality on Aug. 18 could have an added benefit.
If you're looking for reasons to be optimistic about Anthony Kennedy's willingness to uphold Walker's ruling, there's some evidence that allowing marriages to go forward will make Kennedy more reluctant to overturn Walker's ruling. Dan Pinello's research into the reaction of Massachusetts legislators found that a lot of marginal votes -- moderates who didn't support same-sex marriage at the time bans were struck down by the courts -- were much more reluctant to vote to take away existing marriage rights than they were to deny the rights in the first place. It's impossible to know whether this general trend will apply to any individual, of course, but the prospect of invalidating a large number of marriages is one variable that may push Kennedy in the right direction. Conversely, if the Ninth Circuit doesn't allow same-sex marriages to go forward, it may make it easier for Kennedy to join the Court's conservatives in voting to uphold the state's gay-marriage ban.
-- Scott Lemieux
