California Scheming

They will hear the challenge to Prop 8. The best pragmatic summary of the possible consequences (I'm leery of this and would prefer to challenge the ban at the ballot box next time) came from a reader. While I don't like this idea for philosophical reasons, he's pretty persuasive:

What are the possible forms a backlash might take if the CA Supremes overturn Prop 8 on procedural grounds?  Opponents of gay marriage will be angry and have their own protests for awhile, but to what effect?  Honestly, what's left for them to do to us?

(1) An effort to get the ban through the CA state legislature will fail miserably.

(2) An effort to defeat enough pro-SSM CA state legislators to pass the ban will also fail.

(3) An effort to recall a few CA supreme court justices might succeed after a few years, but they would be replaced by Arnold's or a future Democrat's appointees who will not likely go back on the marriage decision.  And by then, people in CA will be used to gay marriage the way they are in MA.

(4) Around the country, the anti-SSM constitutional backlash in the states has basically played itself out.

They've succeeded in 30 states already.  I calculate that there are maybe 3-5 states left that might pass a ban.  The perception of judicial imperialism in CA will add marginally to that, but it's hard to believe it would make much difference.  So they've shot their wad in the states.

(5) It won't lead to a federal amendment.  Only a pro-SSM Supreme Court opinion could do that, and I'm not even sure of that now, since it would take only 13 states to block such an amendment.

The worst consequence of judicial re-imposition of gay marriage in CA would be to drain some energy from this burgeoning political movement for SSM. That could be a real cost.  On the other hand, I'm not yet persuaded that this movement will have real staying power and coalesce into something more organized and effective. And the advantage in cultural, legal, and political terms of having a state of 40 million people with full gay marriage now, as opposed to 10 years from now, might more than compensate for the short-term loss of energy to a nascent movement of unproven effectiveness.

So, on balance, I think judicial re-imposition of gay marriage in CA would be a propaganda blow in the short-term, but a net plus, and maybe a big net plus, in the long run.