In his ruling, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and women.
To opponents of same-sex marriage, the ruling was a travesty that usurped the will of millions of California voters. Brian S. Brown, the executive director of the National Organization for Marriage, called it “a horrendous decision” that “launched the first salvo in a major culture war over same-sex marriage and the proper purview of the courts.”
But Andrew Koppelman, a professor at Northwestern Law School, said “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”
The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.
As I commented earlier, this opinion makes the case for no marriage at all. Under this opinion what is the state’s rational basis for giving legal recognition of any domestic arrangement? There is none. Homosexual arrangements are just as suspect as heterosexual arrangements. And upon what rational basis are singles excluded from benefits enjoyed by marrieds? On the basis of this opinion, none.
My take would be that if States don’t have a right to define something as basic as what defines a marriage, then what power do the States have under the 10th Amendment that cannot in effect be bludgeoned by the 14th Amendment which federal judicial activists have been using for years to undermine the Constitution as a whole. I believe that if the Federal Judiciary had not become involved in this that the Supreme Court would have let each State decide for themselves. As is stands now the SCOTUS, following a predetermined rubber stamp by the 9th Circuit of the lower court ruling, will have no choice but to take this case. I would like to see them return it to States for decision.
Although the outcome will be in doubt until Anthony Kennedy reveals his vote in the USSC’s final decision, it is my opinion that this could end up being a Pyrrhic victory for the gay rights advocacy groups. I personally think that they are pushing too far, too fast for their cause. I think it probable (though not certain by any stretch) that Anthony Kennedy will not take the radical step of mandating same-sex marriage on all states. If this is true, then the gay rights advocates will have simply established that there is NO federal constitutional right to same-sex marriage. This would probably remain settled for at least 10 years, and that might be enough time to let this fad flounder.