A federal appeals court on Tuesday declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.
It’ll be interesting to see how this progresses from here (and it’s an election year, yay!). A majority of Americans now support same-sex marriage rights. Marriage equality has moved incredibly quickly — what was a divisive wedge issue only a few years ago now seems like a foregone conclusion. I suspect that if the GOP decides to hammer the “OMG TEH GAYS!” issue this year, it’s going to backfire, because American voters want to talk about jobs and the economy, and are significantly less interested in scapegoating gay people than we were six or even four years ago.
Marriage has also been held by the Supreme Court to be a fundamental right — the most famous case is Loving v. Virginia, which invalidated anti-miscegenation statutes, but the Court has ruled on marriage many times over and has rarely found reason to restrict consenting adults from marrying each other. There also aren’t a whole lot of compelling arguments against same-sex marriage — it hasn’t been found to be harmful to anyone, whereas blocking partners from getting married can cause actual harm to the individuals and their children. Without putting forth a legitimate reason to restrict marriage to opposite-sex couples, the anti-equality people are at a real disadvantage.
There’s little doubt that the pro-Prop-8 folks will appeal this ruling to the Supreme Court. And a lot of us on the pro-marriage-equality side are nervous about that; we know that the conservative justices are guaranteed “it’s constitutional” votes, but the liberal justices and moderate justices are less of a guarantee. My prediction, though? If the Supreme Court rules on this, the judges are going to be facing strong legal precedent in favor of marriage equality, coupled with a rapidly-shifting social consensus that has situated gay rights as “the new civil rights” (and yes I find that characterization squicky for a lot of reasons, but I think it’s fair to say that’s going to be the perception of the more moderate justices). Given the lack of good legal reasoning to deny marriage equality, and given the justice’s sense of themselves as history-makers, I think the moderates are going to look around and say, “I really don’t want to be on the wrong side of history on this one.” Especially given the fact that Kenny wrote the majority opinion in Lawrence v. Texas, the case that overturned a Texas law outlawing homosexual “sodomy”? I think he’ll see the shifting tides and get himself firmly onto Team Gay. The most optimistic part of me thinks that Roberts will do the same (something that literally no one else I have ever met agrees with, but).
Obviously there is quite a bit at stake here. If the court rules that Prop 8 is Constitutional, the marriage equality movement will be set back decades. That is understandably terrifying. But I’m feeling optimistic. Cautiously optimistic, sure. But optimistic.