As Igor Volsky previously reported, the California Supreme Court held earlier today that the proponents of anti-gay Prop 8 may assert the state’s interest in defending this unconstitutional ballot initiative in federal court. As a legal matter, this is the right decision. Two elected officials — the state’s governor and its attorney general — should not have the power to effectively repeal a law they disagree with simply by refusing to defend it in court. As an immediate practical matter, however, today’s unanimous state supreme court decision reopens the possibility that Prop 8 could survive judicial scrutiny.
Had the California Supreme Court ruled the other way, it likely would have prevented any federal appeals court — including the Supreme Court — from reversing Judge Vaughn Walker’s opinion striking down the anti-marriage ballot initiative. Today’s opinion all but ensures that the U.S. Court of Appeals for the Ninth Circuit will decide whether or not Prop 8 is constitutional, and it raises the very likely possibility that this question will wind up in front of the Supreme Court.
Gay couples and their allies should be optimistic that the Ninth Circuit will affirm Judge Walker’s decision striking down Prop 8. The panel hearing this case includes Judge Stephen Reinhardt, one of the most liberal judges in the country, and Judge Michael Daly Hawkins. Although Judge Hawkins is far more moderate than Reinhardt, he strongly hinted at his sympathies during oral argument — his very first question on the merits of the case compared marriage discrimination to public school segregation. The panel’s third member, Judge N. Randy Smith, is a conservative — but two judges are more than one.
At the Supreme Court, the math is much more difficult. Like so many cases before the high Court, the fate of Prop 8 will probably hinge upon Justice Anthony Kennedy. Yet, unlike the overwhelming majority of issues that come before his Court, Justice Kennedy has a fairly progressive streak on gay rights. Kennedy wrote the Supreme Court’s landmark decision in Romer v. Evans holding that laws motivated solely by anti-gay animus violate the Constitution, and he also wrote the decision in Lawrence v. Texas holding that the government has virtually no business regulating people’s sex lives.
If Kennedy is prepared to declare marriage equality the law of the land — or at least declare that Prop 8 must be struck down — it is likely there are four more justices who share his views. Moreover, there should be no doubt that this is the correct decision under our Constitution. The Supreme Court has long held that groups which share an unchangeable trait and are “subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” are entitled to heightened constitutional protection under the Constitution. Gay men and lesbians unquestionably qualify.
At the very least, however, today’s decision drastically increases the possibility of a high-profile showdown over marriage equality in the Supreme Court — and it also highlights the dire importance of the judicial confirmation process. If the Supreme Court takes the Prop 8 case, it is unlikely that they will reach a final decision until some time in 2013. By that point, we could have an entirely different president and possibly even an entirely new justice — four of the Court’s current members are over the age of 70.
If just one member of the Court’s conservative bloc is replaced by President Obama, the possibility of a decision eliminating Prop 8 increases drastically. By contrast, if Kennedy or one of the Court’s four moderates is replaced by a more conservative president, then it is all but certain that Prop 8 will be upheld.
The California Supreme Court has ruled that proponents of Proposition 8 
