According to Dahlia Lithwick at Slate, Judge Vaughn Walker’s decision to overturn California’s Proposition 8 will be difficult for the U.S. Supreme Court to reverse. That is because Walker appears to have written his opinion with one specific Supreme Court justice in mind:
I count — in his opinion today — seven citations to Justice [Anthony] Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law). In a stunning decision this afternoon, finding California’s Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” Walker notes, with a jerk of the thumb at Kennedy.
Walker has temporarily stayed his ruling, which I expect we’ll be hearing about through the fall campaigns.
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