We have a long way to go before we can declare victory. This will be appealed to the 9th Circuit Court of Appeals and ultimately, perhaps by the Supreme Court of the United States. Gay and lesbian Americans living in California, in the meantime, will probably have to wait before they can get married. Judge Vaughn R. Walker of the Federal District of San Francisco will rule on the Proposition 8 proponents request for a stay next week and in all likelihood he will rule in their favor since a higher court likely will hear their appeal.
I did not believe we should challenge Proposition 8 at this time since this decision ultimately will be decided by a largely conservative Supreme court majority whose record of support for gay rights is tenuous at best. David Boies, Ted Olson and the plaintiffs they represent bet our progress on the hope that we'll have the five votes on the Supreme Court if and when it hears this case. Justices Antonin Scalia and Clarence Thomas have voted against every gay rights challenge that reached the Supreme Court. They don't even believe we have the right to be intimate with the people that we love within the privacy of our homes. One justice, when he served on the 3rd Circuit Court of Appeals, struck down as unconstitutional a hate crimes statute that protected gays. This same judge as a Supreme Court justice voted to hear an appeal challenging the District of Columbia's newly-established marital ordinance permitting same-sex weddings.
To win, Mr. Boies and Olsen will have to count on Justice Anthony Kennedy providing the deciding fifth vote for the four liberals who may but then again may not vote for gay marital rights. Justice Kennedy cast the pivotal vote for two major gay rights victories - the first (Romer v. Evans)overturning a state's constitutional amendment prohibiting it and any subdivision from offering sexual minorities any protection from discrimination whatsoever. In the second (Lawrence v. Texas), he cast the deciding vote recognizing the gay person's right to privacy.
It should be noted, however that in both cases Kennedy did not apply heightened, let alone strict scrutiny, to overturn the laws which discriminated against gay Americans within those jurisdictions which suggests that he believes there may be some instances where sexual orientation-based discrimination may be constitutional if not desirable.
As a general rule, the courts generally uphold laws that advantage one group over another since most laws have the effect of providing one group a set of advantages and another group with a set of disadvantages. Laws create winners and losers, so as long as the elective body can provide a rational basis for the disparity in treatment, its law or regulation will be upheld. Accusations of racial, ethnic, religious and gender discrimination have led the court to provide some exceptions to the rule.
The Court will, for instance, strictly scrutinize any law (hence the term "strict scrutiny") that has the effect of treating similarly situated individuals of a different race, ethnic group or religious affiliation differently since there are no potentially relevant or significant differences to justify the disparity in treatment. Moreover, the court knew that the bigotry and prejudice directed against racial and ethnic minorities at that time was ingrained, that it had to consider any law that disparately impacted-similarly situated individuals of different races suspect.
Men and women were at one time treated differently under the law and federal courts were forced to apply the Fourteenth Amendment's equal protection clause to laws that discriminated against women.
In Romer, Kennedy rejected the use of heightened scrutiny the state court used to overturn the law, which suggests that he may believe that some discrimination against gays may be constitutionally permissible if not socially desirable.
And he may not be the only one. We don't know how Supreme Court nominee Elena Kagan and Justices Sonia Sotomayor, Ruth Bader Ginsburg or Steven Breyer will vote on gay marriage should Proposition 8 or any of the other constitutional challenges reach the Supreme Court.
Judge Walker's ruling was nevertheless monumental and it was the best ruling any of us could have hoped for since our opponents were going to make an issue out of his sexuality whether he ruled our way or not. Had he ruled against us, they would have used him as the shining example of an Uncle Tom who "knew his place" to marginalize the rest of us. Now they will say the system was rigged because it was made by a gay judge who naturally was personally vested in this case.
No one should take their claims at face value, particularly since the claims they will make about him can be said about their hero, Antonin Scalia, even though no one said a word when he heard and voted on cases affecting conservative Christians.
We must prepare ourselves for the backlash. Republicans will use this judicial ruling, like the one overturning Arizona's illegal immigration law, to rally their conservative base to the polls this November. This ruling might inspire Iowa's conservatives to vote their state Democrats out of office so they will have the votes to put gay Iowans' marital rights up for a vote.
Judge Walker won't issue a stay this week, so we will have some time to celebrate, as well as think about the fight ahead of us but we must remember, and Judge Walker's expected ruling to stay the decision on Tuesday should remind us, that we have won one small battle in what has and will continue to be a long and hard-fought war.