Wednesday, August 4, 2010

District court strikes down Prop 8

I suspected all along that this was the way the ruling was going to go on Proposition 8, and that's exactly what Judge Vaughn Walker did today in Perry v. Schwarzenegger (although "Ahnold" actually is personally opposed to Prop 8 as he himself pointed out in his filing and repeated publicly today, he was legally bound as California's governor to defend the law hence his being listed as the main defendant; Jerry "Moonbeam" Brown, the state AG, was also co-listed as a defendant although his position is the same).

The co-counsels, David Boies and Ted Olson (who represented Gore and Bush respectively in the infamous 2000 Florida recount), teamed up for this one and argued that Prop 8 violates due process and equal protection; and that is precisely what Walker said today.    Walker, however, has also stayed his ruling temporarily knowing that there will be an appeal.

No doubt that this is going to go next to the Ninth Circuit and onward to the Supreme Court in Washington.

The decision today goes into great detail about the history of marriage and the evolving roles of men and women within marriage, same-sex relationships, the changing nature of divorce laws and common-law partnerships, and the nature of family throughout history.   This background will, I think, be necessary when SCOTUS finally takes up the case.

When it does, the key vote will undoubtedly be that of Anthony Kennedy.   Either he will be the deciding vote as he has been on so many close 5-4 decisions (mostly on the side of law and order but also in favour of civil rights and environmental protection); or if Walker's ruling is upheld, Kennedy may actually manage to put together an even greater majority to underscore that this, like desegregation and banning sexual harrassment in the workplace, is a matter of civil rights.

Whatever happens down the line, this today is an important step forward.   There is no question about it.   But it's worth remembering too that many in California who voted for President Obama in 2008 also supported Proposition 8.    Just because one is economically progressive doesn't always mean he or she is the same on social issues, and this could become an issue in the extremely close race between "Moonbeam" and eBay founder Meg Whitman who supports Prop 8 but also says (or so she says) that she favours "civil unions," which was the status quo before the measure was passed.

But personal kudos from me to Olson especially.   The conservative icon, whose wife Barbara was killed when American 77 flew into the Pentagon on 9/11, has made a dramatic conversion and recognizes that equal rights mean equal rights for all and not for some.   No doubt he has burned some bridges with long time allies but he has made new ones, and gained new respect from many.   He's on the short list of 100 finalists for this year's Time "Person of the Year" and he deserves to be.

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