Judge Walker’s decision in the Prop 8 trial is brilliant, and a wonderful affirmation of the liberty of all people to marry whomever God’s plan has ordained for them, regardless of the genders involved. I also agree that it’s clearly aimed at Anthony Kennedy, for a potential Supreme Court showdown. But there’s a good chance it will never get there.
No one really knows how the Court will vote if it gets there – I think it’s four for gay marriage (Kagan, Sotomayor, Ginsburg, Breyer) four against (Scalia, Thomas, Alito, Roberts) and then a coin-toss with Kennedy (though I think he comes down for it.) Nate Silver thinks it’s three for, and three against (with Kagan and Roberts joining Kennedy as toss-ups.) Assume that the case gets there 2012 or 2013: the Court is likely the same balance as it is now, with the most likely change is Ginsburg, who’s had some serious cancer bouts, but with Obama in the White House her seat isn’t going to move way right. (Scalia apparently has a thing for Marlboros, but I think he’s tough old curmudgeon and isn’t going anywhere for a while)
I don’t think the Court wants this one, though. The liberals don’t want it because they don’t see how they get a guaranteed five votes. While Scalia might not care (and Thomas probably doesn’t care either) I have to believe that Alito and Roberts can see the writing on the wall, and know that they’re on the wrong side of history of gay marriage. They’ve got thirty years left on the court, and they both know that gay marriage is only a matter of time. If it got to the court, they’d have to vote against it and affirm Prop 8, but they don’t want to be condemned by history like the majority in Dred Scott or Plessey v Ferguson. They’d much sooner find a way to avoid that question and let the political process resolve it.
I think California is going to give them an out, I’m just not sure if it’s going to happen in time. California is nearly universally understood to be completely ungovernable and in desperate need of a new constitution. There was a good spate of ink devoted to this issue last year – see the Economist (subscription required) the LA Times, (the California Fix) or the New Yorker. While the main backers of the California constitutional convention gave up for 2010, there is still interest in the subject, and California’s problems are only getting worse. At some point, California is going to have to confront its problems, and you can be sure that if a State Legislature can hand its problems off to someone else to solve, it will.
So, I expect to see a serious effort to rewrite California’s constitution soon, and given all of the other problems they’ll have to wrestle with, they’ll leave old wedge issues like gay marriage out. If California adopts a new constitution before the Supreme Court issues a ruling, the Court will use that as an opportunity to sidestep having to make a decision.
Gay marriage is entirely a demographic battle, and the bigots are dying off. If Democrats control the Wisconsin state legislature in the next few years, there will be a repeal of the marriage amendment on a future ballot, maybe by 2014. Nate Silver’s model says that we’ll have passed the threshold by then, and I hope for Wisconsin’s sake we will. It, unfortunately, will probably be too late for my boyfriend and I. Graduation is coming up soon for me, and after doing K-12 in Wisconsin public schools, an undergrad degree from the UW, and now probably six years of graduate school, Wisconsin has invested a lot in me. I’d love to stay, but the inability to adequately protect my family is a darn good reason to leave for a state like Massachusetts. The 2006 marriage amendment attracted exactly zero skilled workers or employers to Wisconsin, and has preserved exactly zero marriages that would have otherwise failed. I’m hopeful that in 2014, voters will see that the marriage ban only hurts the state.
