by Patrick Appel
Emily Bazelon warns:
In the end, do we really want gay marriage to become legal in California because of what's essentially a technicality? That seems a highly unsatisfying resolution to what was always billed as an epic case, and it would expose in the left a bit of hypocrisy about standing much as it would the right. Far better would be for the Prop 8 proponents themselves to decide not to bring an appeal. David Barton of the American Family Association has already floated that idea. If conservatives cave in on their own, they'd implicitly concede how terribly weak their case was at trial, whatever excuse they come up with. (Barton's was to cast Kennedy as a sure vote in favor of a constitutional right to gay marriage. Amusing that he thinks so, but I still wouldn't want to bet on it.)
Jonathan Adler links to other commentary on this question. Bazelon's use of the word "technicality" irks, but she's right that there are theoretically better ways to win. Still, I'll take victories where I can find them. Journalists lust for the "epic case" but progress generally takes small steps forward. I'd love it if every American woke up tomorrow and saw the rightness of marriage equality, but the progress made in the last few years isn't illegitimate just because it doesn't match the ideal. No one person gets to decide how this fight is won.