Last night Judge Vaughn Walker issued his ruling that Proposition 8, the California law legalizing discrimination against gay and lesbian people in denying them marriage equality, is unconstitutional.
For people who cherish the concept of equality under the law, it was a heartening evening. But this ruling is not the end of the line. The US Supreme Court will almost certainly take up this case on appeal, and there are five reasons to believe that the Supreme Court will overturn Judge Walker’s ruling and reinstate Prop 8.
Those five reasons:
1. Justice Samuel Alito
2. John Roberts
3. Antonin Scalia
4. Clarence Thomas
5. Anthony Kennedy
This conservative Supreme Court majority has shown a ready willingness to deny liberty and equality to Americans in the past. And they won’t allow inept representation by anti-gay forces to get in their way.
In the California case, lawyers representing the anti-gay defenders of Proposition 8 made the bizarrely theatrical move of withdrawing nearly all of its expert witnesses on the grounds that they feared for their lives from a murderous rampaging gay horde if their testimony were broadcasted to the public. Fine, responded Judge Vaughn Walker — we’ll take their testimony but won’t broadcast it. But still those witnesses weren’t called. As a result, plaintiffs’ witnesses arguing against Proposition 8 held the attention of the court in an unchallenged manner.
The Supreme Court doesn’t operate this way: one lawyer in favor of Proposition 8 and one lawyer in opposition to Proposition 8 will have the chance to articulate legal arguments, but these will be carried out without the testimony of witnesses, and the Supreme Court justices rather than representing lawyers have control over the flow of conversation, with the prerogative to interrupt, redirect and even cut off lines of argument. After arguments, any group of five or more can craft any legal opinion it desires.
It’s nice to see the legal bigotry of Prop 8 being delivered a smackdown. But I wouldn’t bet any money on the opinion being sustained. When Alito and Kennedy and Roberts and Scalia and Thomas get their hands on this case, expect to see marriage inequality reaffirmed.
It’s disheartening to see how the Supreme Court has changed from an institution that could be above cultural prejudice, leading the way in unbiased application of the Constitution, to an institution that’s dragging our nation behind, allowing prejudice and fear to prevent the application of Constitutional principles.