Federal Judge Vaughn Walker, a George H.W. Bush appointee, declared California’s Prop. 8 unconstitutional on August 4th. Reading his decision it is stunning that Prop 8 proponents were so totally and absolutely ill-prepared for court. Their arguments were nearly nonexistent. In fact, some of their testimony actually supported the case for same sex marriage. Most agree that the 9th Circuit Court of Appeals will probably sustain Judge Vaughn Walker’s ruling.
The Supreme Court is another matter. The Olsen-Boies (the attorneys who brought the case) strategy is aimed at one thing: Convincing US Supreme Court Justice Anthony Kennedy to vote with the four liberals (Breyer, Ginsberg, Kagan, and Sotomayor) to throw out Prop. 8.
Justices Thomas, Scalia, Roberts and Alito are right wing ideologues and it seems quite remote that any would vote for same-sex marriage. (Some of them are amazingly expert at twisting the Constitution to say the opposite of what it means. Indeed, they treat the Constitution the same way the right wing media treated Shirley Sherrod.)
When Justice Kennedy was on a lower court he authored an opinion supporting the military’s right to discharge gay soldiers and, on the Supreme Court, voted with the majority against the gay community in the Boy Scouts of America v Dale in 2000. On the Supreme Court he has authored two very favorable opinions for lesbians and gay men, Romer v Evans 1996, Colorado, (anti-discrimination in housing and the workplace) and Lawrence v Texas (2003, which threw out all the anti-sodomy laws).
However, since Roberts and Alito joined the Court, Kennedy seems to be voting with the conservatives a lot more. Kennedy has been in the majority 100% of the time in the Court’s 5-4 decisions during the last several years (Since Sandra Day O’Conner left the Court and Alito replaced her). Whether he votes with the liberals or the conservatives, it has always been Kennedy’s vote which decided the case.
Of course, if one of the five Catholic men on the Supreme Court (Kennedy, Thomas, Scalia, Roberts and Alito) should die or leave the Court before this case arrives at their doorstep then President Obama will appoint their replacement and we are in an entirely different ball game.
More significant than the nullification of Prop 8 are the July 8th decisions in Massachusetts invalidating part of the federal Defence of Marriage Act, DOMA. Federal Judge Joseph Tauro, a Nixon appointee, issued two decisions in two cases voiding Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law. That decision only affects Massachusetts. This means, in effect, that a federal law, DOMA, is only in force in 49 states. That cannot stand for long because federal law must apply equally in all parts of the country. Therefore, these decisions will also make it to the US Supreme Court eventually. The Supreme Court can combine the DOMA and Prop 8 cases if they both get to the Supreme Court at about the same time.
Attorneys Olsen and Boies appear to be very confident of their ultimate success. Many who support same sex marriage hope this confidence is based on the notion that Olsen and Boies know something about Justice Kennedy’s thinking on this issue that the general public does not, as yet, know. Otherwise, to hang their entire case on one justice appears to be a very chancy strategy.
Note: Before becoming a judge, Vaughn Walker successfully represented the US Olympic Committee in their suite against the Gay Olympics. Mr. Walker’s success is why the Gay Olympics had to be renamed the Gay Games.