Though most progressives are rightly very pleased with federal district court Judge Vaughan Walker’s ruling in Perry v. Schwarzenegger, a challenge to California’s Proposition 8 ban on same-sex marriages, it’s going to be a while before we know the ultimate implications.
Yes, Walker’s ruling was sweeping, and in its Emperor-Has-No-Clothes explosion of the case for marriage inequality, it had the ring of a landmark decision that law students will examine for many years.
But it’s important to remember not only that this is a lower-court ruling subject to appeal, but also that it involved fact-finding in a situation where the defendants (supporters of Prop 8) offered an insufficient and incompetent case for their point of view. Indeed, that’s why Walker felt compelled to say the case for Prop 8, as presented in his courtroom, didn’t meet the lower “rationale basis” standard for discriminatory actions, much less the “strict scrutiny” standard that would be employed if gays and lesbians were recognized as a class of citizens requiring constitutional protection.
So unless opponents of marriage equality continue to do sloppy courtroom work, the battle is far from over, and most observers expect the case to wind up on the docket of the U.S. Supreme Court, with the outcome probably depending on the unpredictable position of swing-vote Justice Anthony Kennedy (see Nate Silver’s post at FiveThirtyEight for an optimistic assessment of where Kennedy might land).
But judicial proceedings aside, the vast attention accorded this decision will have a more immediate effect in the political arena, with ripples emanating wide and far and into very different contexts. At Politico today, the early banner article, by Josh Gerstein, was a rumination on how the decision might force the president out of his no-to-gay-marriage, no-to-Prop-8 posture. And beyond the White House, the renewed elevation of this issue will create cross-pressures for Democrats in culturally conservative parts of the country.
All that is fairly obvious, but we should also consider the pressure the decision will create for Republicans who have sought to make economic and fiscal issues, not divisive cultural issues, the focus of their 2010 and 2012 campaigns.
The very day after Judge Walker’s decision, Georgia GOP gubernatorial candidate Nathan Deal, locked in a nasty cage-match runoff fight with Karen Handel, launched a new ad blasting his rival for alleged friendliness to gays and lesbians. Those unaccustomed to the current tone of Republican politics in the South may be shocked at the unabashed homophobia in the ad, which brings back memories of the late Jesse Helms. In fact, it’s a theme Deal has been hitting for some time, and I’m sure the ad was in the can before word came out of San Francisco about the judge’s ruling. But if he indeed makes this his signature attack line in the final push towards next Tuesday’s runoff, it’s probably because Perry v. Schwarzenegger has again made the specter of “activist judges” supporting the “homosexual agenda” a lively concern among conservative Republicans.
Whatever happens in Georgia–where Sarah Palin is riding into town the day before the runoff to campaign with Handel–a renewed focus on fighting marriage equality will have a long-term effect on the nature and appeal of the GOP. It’s interesting in that connection that Deal’s most prominent backer, Newt Gingrich, has recently become one of the most avid supporters of culture-war politics, athough his focus has been on the alleged un-American nature of Democrats–and more recently on Muslims–not gays and lesbians. Still, many voters who are in no particular sense progressives may not be fond of a double-down return to the Days of Rage when many Republicans spent most of their time attacking the Enemies Within, even in their own party.