The marriage decision, for better and for worse

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The Ninth Circuit Court of Appeals judges cited both Groucho Marx ("marriage is a great institution, but who wants to live in an institution?") and Marilyn Monroe (what if the movie was called "Who Wants to Enter Into a Domestic Partnership With a Millionaire?") in discussing the importance of the word "marriage." Justice Stephen Reinhardt's ruling made clear that the only purpose of Proposition 8 was to "lessen the status and dignity of gays and lesbians in California." The decision makes clear that the law against same-sex marriage is by its nature discriminatory.

But in the end, the ruling was very narrow. If you read the entire decision, it's not a sweeping affirmation of the legal rights of Americans to marry the person of their choice. The court basically concluded that California voters had no legal right to take away marriage rights that had previously existed. Since the state Supreme Court had granted marriage equality, and 18,000 people got married before Prop. 8 passed, the ballot measure was in fact a reduction in rights, which, the court said, requires a different level of scrutiny and analysis.

The Chronicle calls it a "wise decision," but in political terms, it's a bit wimpy: It stops far short of where Judge Vaughn Walker went in his original ruling on this case, which essentially said that marriage is a fundamental right for all.

The good news: If the ruling stands up, same-sex marraige will be legal in the state of California. The bad news: If the ruling stands up, it's likely that it will apply only to California.

But that could be good news in a sense, too. Here's why.

The proponents of Prop. 8 are going to appeal to the U.S. Supreme Court. Everyone knows that. And if the 9th Circuit had come out with a sweeping ruling stating that the right of gays and lesbians to marry is fundamental and can't be abridged under any circumstances, it's almost certain the the Supreme Court would hear the case. That might be wonderful; the Supremes could come down with a decision like Brown v. Board of Education  that forever changes the civil rights landscape and ensures full equality for the LGBT community in every aspect of society.

On the other hand, I worry that if this current Supreme Court heard Brown, five members might have sided with the Board of Education.

In other words, there are four very conservative justices who could easily proclaim the sanctity of heterosexual marriage in a ruling that would set us back years -- and depending on how Justice Anthony Kennedy was feeling that day, he could go either way. So giving the current Supreme Court a chance to rule on the larger issue was, and is, risky. Now, Justice Reinhardt's decision repeatedly cited a case that Kennedy had personally written, the 1996 Romer v. Evans, which would have made it harder for the swing judge to reverse the 9th Circuit -- but you never know.

As it is, there's a good chance now that the High Court will just take a duck. That would mean that same-sex marriage was restored to legal status in California (and there's no way that another Prop. 8 will ever pass in this state, ain't happening, don't waste your money, bigots -- this train is only going in one direction, and the population has already changed enough that same-sex marriage would easily win at the polls). And it will be legal in eight other states and D.C., and the movement will continue and in a few years, it will be legal everywhere, without the U.S. Supreme Court making the final call. (Or Kennedy will retire and Obama will be re-elected and it won't matter because the Supreme Court will no longer have a troglodyte majority.)

And even if the court takes the case, it's possible that Kennedy would go along with the narrow ruling (Reinhardt has been around a long time and he's no fool -- he knows who his audience is on a final appeal, and it's one Supreme Court justice). It's possible Kennedy might agree that you can't take away existing rights, which would be good news for California and not terrible news for the rest of the country.

That's the cautious approach. I'm the sort who usually wants to push issues as far as we can (wouldn't a showdown over the defining LGBT issue of the day at the Supreme Court be exciting? Wouldn't it be amazing to see Justice Scalia try to argue, in 2012, that it's okay to deny marriage rights to lesbians and gay people?) And I believe that both the legal and political ground is shifting fast on this issue and we might get a grounbreaking Supreme Court decision the way we did in Lawrence v. Texas. But the downside is potentially huge.

So while I was disappointed in the rather limited scope of the decision, I suspect a lot of the lawyers who support marriage equality are quietly pleased. This is a big victory, and it might actually last.