As you have probably heard, on Wednesday Judge Vaughn Walker of California over-turned Prop 8, the 2008 law which rescinded the right to same-sex marriage in California. Thank God. It’s not by any stretch a final victory, but at least it rectifies the wrong perpetuated by a lot of far-right and Mormon money a few years back. The case will, undoubtedly, go up to the Supreme Court, and that’s kind of the point. Before moving to Paris and becoming a photographer I was studying political science at UCLA, and I found constitutional law to be the most interesting. It’s all predicated on logic: either something fits a certain definition, or else it doesn’t. Of course that logic is applied by human being, which is the rub, but in its purest form constitutional law is totally black and white and I love that.
The point I’m getting at is that Judge Walker decided this case, and wrote his opinion, in such a way that it will make the ruling fairly challenging to overturn. Rather than basing it on “strict scrutiny,” a finding that the higher court often overturns, he based it on something called “rational basis review.” The simpler way to say that might be that rather than basing his decisions on findings of law, he based it on findings of fact. The fact is that Prop 8 discriminated against an entire class of people by placing a moral judgement on their relationships, effectively turning a social stigma (“gay and lesbian relationships are not as good as heterosexual ones”) into rule of law. By using his 136-page opinion to lay out a record of fact, Judge Walker has made the Supreme Court’s job significantly harder if they want to overturn his ruling, because the standard that needs to be met is much, much lower.
Of course the Supreme Court can, and does, reverse rulings all the time, and given the makeup of the Court, it may well reverse this one. One article I read said that this ruling was essentially written to speak to Justice Anthony Kennedy, the Court’s swing vote on this issue – and only real swing vote period that this point. Kennedy wrote the opinion in Lawrence v. Texas, which struck down the state’s anti-sodomy law (in 2003. That’s right, sodomy was illegal in Texas until 2003) using the same logic employed here.
One thing that I think is really interesting about the challenge that’s been mounted against Prop 8 is that one of the lawyers leading it is super duper conservative. Ted Olson was the lawyer who successfully argued the Bush side in Bush v. Gore, which put Bush into office. He then went on to serve as Solicitor General under Bush, arguing the president’s claims of expanded wartime powers.
So why is this guy arguing for gay marriage? Aside from some really far out conspiracy theorists, which have suggested that he’s going to deliberately argue to lose the case, most people have accepted him at his word for why he’s doing it. The short answer? It’s right. And it’s American. The laws limiting gay-marriage are in direct opposition to the founding American principle of social and legal equality. That’s the bottom line.
Same-sex marriage is going to happen here. It is happening, and it’s happening because we don’t get to pick and chose principles. Principles, unlike life, are black and white. Either things are fair, and everyone is equal, or else they aren’t. It’s as simple as that. And when it becomes an everyday thing, which it will, I really think all of this is going to feel like people railing against integration, like black and white pictures of dogs and fire hoses and the National Guard called into the escort kids into schools. Like a weird piece of an antiquated world.
You can read a much more detailed analysis of more Judge Walker’s opinion overturning Prop 8 here, and Ted Olson’s rational for arguing the case here. You can also watch a video, a little off-subject but related to this for me, of Michael Bloomberg defending the Islamic Center that will be built in lower Manhattan near Ground Zero. I don’t have much love for Bloomberg usually, but I do here.