So as everyone who’s not been living under a rock for the past few days knows, that in a 2-1 vote the 9th Circuit upheld Judge Vaughn Walker’s ruling that Proposition 8 was discriminatory and had no justification for that discrimination and so was invalid.
Of course from corner to corner of the country the anti-equality crowd is howling because they know that their “shining moment” was Proposition 8, it never could get better than discrimination in law in California, ostensibly by the vote of the people. They knew they could never win a victory sweeter than that. Of course they’d hope to get a federal marriage amendment but that was always a pipe dream.
They know if they are honest that this is the beginning of the end, and it may take 20 years but equal marriage will happen in every state. However they are making a strategic error by appealing for the Supreme Court. As it stands they’ve lost the battle in California, but loosing at the supreme court could loose them the war.
Sotoyamor, Kagin, Breyer, and Ginsberg are solidly pro-equality and the opinion handed to them by the 9th circuit and Judge Walker is one that they could apply to all such bans across the US from DOMA to the ban in Texas.
Kennedy is always seen as the swing vote, and many on the right hope that his statements about marriage equality in the Lawrence vs Texas ruling mean he’s not in favour of marriage equality. However he made it clear that he feels that prejudice against gay and lesbian persons is not a universal constant and its well past time to move past it.
Now if you look at the remaining members of the court, Alito, Scalia, Roberts and Thomas can any of them be taken off the board.
Well Scalia and Thomas are known to have radical views on the constitution that seem outside the view of any other reputable constitutional scholar, and so even with the quality of the Walker ruling they can be expected to vote against marriage equality.
So that leaves the two Bush Appointees, Alito and Roberts who were political appointees placed there as part of the long game to shift the court to the right. They have shown themselves to be generally conservative on most viewpoints, including some infamous ruling such as “Citizens United”. However both have been careful and measured on their viewpoints, neither having faced an issue of equality while sitting on the Supreme Court or prior to this as justices.
What this means is that while there is some risk that the court might say that the Prop 8 ruling only applies to California, theres a possibility that they could see it as applying to all such discriminatory amendments and laws throughout the entire country.
They have lost California, I don’t see any combination of justices that would rule that Proposition 8 was constitutional, but if they go down this route, then they risk bringing equality to every State in the Union.