Then a unique team of conservative Ted Olson, and leftist David Boies, took the case in the federal courts. Judge Vaughn Walker, appointed by President George H. Bush appointed to the US District Court was asked to rule on the constitutionality of the proposition. Walker was first appointed by Reagan, and is believed to have libertarian sentiments—which conservatives will call socialist no doubt. Walker decided that the Proposition has violated constitutional protections and said it was invalid.
This is where the Religious Right placed a sucker bet, that is, a bet they can't win. They are appealing that decision to the Supreme Court. Why is this a sucker bet? Simple, what ever happens they are screwed.
Consider first the situation had they not appealed. Walker's decision would stand and Proposition 8 would be abolished and gay people would resume with the right to marry. This was the situation before 8 passed and, absent the lawsuit would be the situation again, within a matter of a few years. The tide at the polling booths is decidedly against the advocates of second class citizenship for people simply because they are gay. Older voters die every die, young voters replace them That isn't good the bigots. The Religious Right is losing power as their churches lose members and they are fighting with shrinking numbers. Polling numbers are against them. Most recent polls in California show a shift already against Prop 8. Put up to a vote again the measure is quite likely to be repealed.
At most the Religious Right gained a little legal gay-bashing for a period of a few years, at best.
What can they lose?
Consider what happens if the case goes to the Supreme Court. The Court can either side with Walker or overturn him. If they overturn him what has the pro-equality side lost? Nothing. They are exactly where they are today, having to fight the battle for equal rights on a state by state basis. They aren't doing too badly there considered how "radical" this proposal was only a few years ago. I suspect that Maryland and Rhode Island will legalize gay marriage in the next few moths and even possibly New York. Republicans in New Hampshire, trying to strip gay people of marriage rights there, don't seem to be making any headway. So, the number of states with gay marriage will rise to 9, not counting Illinois that just passed civil unions for gay couples. So the equality coalition of leftists, libertarians and some decent conservatives will continue to gain ground, even if they lose this appeal.
What will the anti-marriage coalition of Maggie Gallagher, Mormons, Fundamentalists and closeted Catholic bishops lose, if the ruling goes against them. Well, if the court upholds Walker and agrees that the marriage restrictions for gay couples violates fundamental constitutional rights then they lose everything. Every piece of bigoted legislation that they have convinced short-sighted Republicans to pass will be swept away. They bet the farm on this one, while their opponents have bet absolutely nothing.
I would have thought that even a short consideration of the issues would have convinced the anti-rights activists that they were being lured into a fight where they lose either way. It is like they are betting $1 million dollars and can win $1 in return, but lose the whole million if things go against them. For the equality team this means heads they win, and tails they win.
So why go ahead with a law suit that will only lead to net losses for your side? I suspect they never thought about this because they are so overwhelmed by their hatred for gay people. They were blinded by their own anger and dislike for gay people and didn't give the matter much thought. At each step of the legal process the equality coalition had nothing substantial to loss and that is why they will come out in good shape no matter what happens now. They won't lose any ground except have spent some money and time.
Now, the anti-rights campaigners had a option of dropping out and they could have done so without losing face. They wanted to appeal the decision up to the Supreme Court but Judge Walker has noted that they don't have standing. No one from the State of California wanted to defend the law outlawing marriage equality. Neither the previous governor or attorney general, nor the current governor or attorney general want to defend this legislation. If the anti-rights side failed to push the measure would be over. California would return to legal marriage rights for gay people.
But the anti-rights groups appeals to the Ninth Circuit Court of Appeals demanding they be recognize to defend a law that the State itself does NOT wish to defend. The Ninth Circuit has asked the California Supreme Court to tell them if any California law allows private groups to defend laws which the State does not wish to defend.
In just a few hour the California Supreme Court will decide whether they will answer this question or not. If they rule that the anti-rights groups have NO standing than the Ninth Circuit will allow this Walker's decision to stand and equal marriage rights will be restored. If they rule that the groups do have standing it can move to the Supreme Court where they may end up repealing anti-marriage laws across the entire state.
One thing about placing bets, legal related or otherwise, is that heated passion often clouds your ability to evaluate risks and benefits. In this case, the passionate hatred these people have for gay men and women is so intense that they allowed themselves to cooperate in a legal plan that can't win them anything, but may hand over total victory to our side. Passion clouds reason, had that not happened, they may have seen they had a sucker bet and could only lose by pursuing this matter. Personally I'm glad they are so blinded by their own bigotry that they couldn't see that.
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