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By Tom Cushing


Uploaded: Feb 8, 2012

To paraphrase Clint Eastwood's raspy Super Bowl ad for an Italian car company: "It's halftime in California." As reported elsewhere hereabouts, the monumental struggle between the forces seeking and opposing same-sex marriage rights has reached an important mid-point.

This particular campaign in the broader culture wars begins in 2000 with the passage of Prop 22, legislatively defining marriage as a one-man, one woman show. The margin then was a comfortable 21%. After the CA Supreme Court declared that Proposition violated the state constitution, Prop 8 was born – to amend the constitution, itself. It, too, won after a nasty, exceptionally well-financed and divisive battle – this time more narrowly, but clearly, at 5%. It is remarkable to me that the state constitution can be amended so easily, given the role of that document at the apex of the state's governance, but I digress (delay of game?).

Enter a bi-partisan coalition between two of the best trial lawyers in the country, Ted Thompson and David Boies: conservative and liberal, former Solicitor General and the guy who beat Microsoft, opposing counsel in Bush v. Gore, and, by all reports, breeders both of them. Ignoring (some would say "usurping") the more cautious counsel of established leaders in the gay rights movement, Thompson/Boies brought a lawsuit on behalf of two gay couples to challenge the constitutionality of Prop 8 – this time on the federal level. They believe, obviously, that five-or-more votes exist on the US Supreme Court to vindicate their position, but it's a high wire act – if that fifth vote (likely Justice Kennedy in the current make-up of the Court) tips the other way, it resets the clock to a much earlier, less favorable era for gays and other minorities.

Now, a brief civics timeout. The Bill of Rights and the 14th Amendment contain bedrock principles of American culture and aspiration – freedoms of speech and religion, against unreasonable searches and seizures, and guarantees of due process and equal protection under the law, as examples. Those provisions serve as checks on governmental power exercised against individual Americans. More broadly stated, they protect minorities against the tyranny of the majority by holding the actions of "the People" to timeless, principled standards. They are interpreted by the Supreme Court, and every law – state and federal – must be consistent with those interpretations.

The lawsuit was heard by Judge Walker, a Reagan appointee, randomly assigned to the case. The trial phase built a record that demonstrated just how thin the Prop 8 proponents' policy bases are, when subjected to dispassionate analysis – and cross-examination. Judge Walker had no difficulty ruling Prop 8 unconstitutional on any of three bases. (In an interesting sideshow, the Proponents sought to make hay with the ex post facto "revelation" of Judge Walker's own sexual orientation. It was no secret; they could not have been unaware of it from the outset – hell, I knew it, and I'm hardly an Insider. They chose, cynically I believe, to raise it after the trial, at a time that would feed the persecution sensibilities of their more credulous supporters).

The intermediate Court of Appeals yesterday chose one of those bases for its ruling that affirmed Judge Walker's order. A philosophically balanced panel ruled 2-1 on a basis that is both narrow and a devastating critique of the Proponents' cause: that there is simply no rational basis in the record for Prop 8's marital disqualification of same-sex couples. For the majority, the Proposition rests simply on social disapproval and fear of difference, neither of which meets the very low "rational basis" standard of review. The dissent argued both that the Judges were bound by precedent of a 1972 Supreme Court denial of review, and that the rational basis might be found in the state's interest in optimizing child-rearing circumstances.

The Supremes are faced with several choices: they can deny review, which would have the effect of invalidating Prop 8 in CA, they can decide it on the narrow grounds of yesterday's Opinion (same effect), overturn it on that basis (November ballot, here we come, again), or take the opportunity to more expansively opine on the subject, as Judge Walker did, pro or con. There are reliably liberal and conservative wings of the Court – as always (and ingeniously – thanks Founders!), the Justices in the middle hold the key. It's worth noting that Justice Kennedy, that likely fifth vote either way, wrote the majority opinion in Romer v. Evans, a 1996 case relied-upon heavily by the Ninth Circuit majority.

Regardless, there's another half to play. For my part, I see this as an important test on the issue of how this country treats folks who will never command a majority. In its history, the Court has stood up (Brown v. Board of Education), and down (Korematsu v. United States) for minority rights. Here's hoping they will choose to stand with the Ninth Circuit, and with folks who deserve to live their lives free of irrational, government-sponsored opprobrium. In the words of Dr. King: the arc of history is long, but it bends toward justice. So may it be.