Opinion Brief

California's gay-marriage ban: Can conservatives still win?

A federal judge has overturned California's anti–gay marriage act with a sweeping "fact-based" ruling. Will the Supreme Court save Proposition 8?

U.S. District Judge Vaughn Walker issued a sweeping ruling Wednesday that struck down California's voter-approved gay-marriage ban, Proposition 8, saying it has "no rational basis," and is unconstitutional. Walker issued a temporary stay of his ruling while the Prop 8 supporters file their appeal, and the case is expected to become a prolonged legal battle, likely reaching the Supreme Court. Will the conservative-majority high court step in and save Prop 8 and other same-sex marriage bans? (Watch an MSNBC discussion about the impact of the ruling)

Walker's built a "firm legal foundation" for gay marriage: Thanks to Judge Walker, the Constitution's "fundamental guarantees of freedom" now extend to gay couples who want to wed, says The New York Times in an editorial. And Walker's persuasively fact-based ruling will make this "instant landmark in American legal history" hard for appellate courts, including the Supreme Court, to "assail.""Marriage is a constitutional right"

This could be a big win for gay-marriage foes: Gay rights groups are "publicly celebrating," says Dale Carpenter in The Volokh Conspiracy. But "in the background there is considerable unease about what happens next," especially at the Supreme Court. Walker has raised the stakes with a "maximalist" ruling, "filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science," increasing the "potential for unintended and harmful consequences for gay-rights claims" if the high court isn't ready to declare a right to same-sex marriage — and it probably isn't.
"A maximalist decision, raising the stakes"

The case will end in a 5-4 ruling, one way or another: "The appeals road will be long and nasty," says Dahlia Lithwick in Slate. But in the end, the whole gay-marriage enchilada will likely come down to one man: Supreme Court Justice Anthony Kennedy. Not coincidentally, Walker's "decision was written for a court of one — Kennedy," heavily citing the swing justice's liberal rulings on gay rights.
"A brilliant ruling"

The ultimate high court is the people: It will come down to Kennedy, but he may be "put off by the sweeping and emotionally-laden rhetoric" in Walker's decision, says Logan Penza in The Moderate Voice. Even if the Supreme Court does side with Walker, though, the court of public opinion is still against gay marriage. And that would mean "a long and hard fight" for hearts and minds... and a constitutional amendment."Only a temporary victory for gay marriage"

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