The Greatness, and Potential Tragedy, of Perry v. Schwarzenegger

I have very, very mixed feelings about Judge Walker’s historic decision holding California’s Proposition 8 unconstitutional. On the one hand, it represents judicial review at its best, remedying the exclusion of an unpopular minority from a fundamental right for irrational reasons. Strictly on the merits. the decision is cause for celebration.

I have very mixed feelings about the outcome, though, simply because the district court is merely the first stage in the appellate process, and the lawsuit was strategically foolish. I should emphasize that this is not because I’ve suddenly come to accept contrarian nonsense about how justice should be deferred until an unspecified time in the future in which social change can be magically achieved without conflict. If I thought there was a good chance that this ruling would be upheld by higher courts, I would be ecstatic. But there’s the rub: I have a very hard time believing that the Supreme Court would let a circuit court opinion upholding the invalidation of Prop 8 stand without review, and and even harder time believing that the Supreme Court wouldn’t reverse Judge Walker.   And a Bowers-type negative precedent would not only foreclose future federal lawsuits for longer than necessary, but could well make it more difficult to prevail in state courts as well.

This isn’t to criticize Judge Walker — it wasn’t his choice to bring this suit, and he did the right thing. And maybe I’m wrong and the case will stir Anthony Kennedy’s sporadic conscience. But I have the sinking feeling that this will not end well.

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