Somebody recently asked me to clarify what is going on with the Federal Proposition 8 case, Perry v. Schwarzenegger . So I’ve been web surfing for information.

The [1] American Foundation for Equal Rights doesn’t seem to be updating its site. [2] Bill Moyer’s Journal has no new entries since February 26. We thought that Judge Walker as going to issue a ruling by now. Matt Coles of the ACLU has posted his analysis on [3] Huffington Post as recently as March 11, but he seems to ignore the significance of a plaintiff’s win in federal court because of the 99% likelihood that the case would be appealed all the way to the Supremes.

Cole thinks “he’ll conclude like most constitutional lawyers that discrimination based on sexual orientation shouldn’t be treated as generally permissible. If it isn’t, it is very difficult to come up with a credible argument for excluding same-sex couples from marriage.”

The lawsuit, in case you’ve forgotten, is asking for the federal court to strike own the state constitutional amendment as discriminatory. Plaintiffs’ attorneys Ted Olson and David Boies are conservative and liberal—they argued on opposite sides in the U.S. Supreme Court case in 2000 that gave the Presidency to George W. Bush. But on this case, they are working together.

Before the attorneys has finished presenting their case, [4] it came out that the U. S. District Court’s Chief Judge Vaughn Walker is himself gay, but any scandal about that one doesn’t seem to have traction. If it did, what would prevent plaintiffs form crying foul if the judge was heterosexual? Does whom the court judge sleeps with, if s/he even has a partner, really affect his/her judicial reasoning? Walker, by the way, was appointed by President Bush #1 in 1989. According to the San Francisco Chronicle coverage, NCLR’s Kate Kendall isn’t worried about bias, or for that matter, reverse bias.

The Senior Policy Counsel for the Los Angeles Gay & Lesbian Center published an update in the [5] March 2010 Vanguard from which I quote:

Walker’s decision seems likely to be favorable. Either way, it will almost certainly be appealed, first to the Ninth Circuit and then in all probability to the U.S. Supreme Court. A final decision is likely two or more years away.A Supreme Court victory could strike down all marriage bans across the country and allow same-sex marriages everywhere in the U.S.A.; a defeat would establish an adverse federal precedent, but it would not affect marriage equality in states where it already exists. And although such an adverse ruling could well make some ongoing -state-by-state efforts for marriage equality more challenging, it would not in any way stop those efforts from going forward.

This means that there is a lot riding on this case, and the conservatives mighty have much more to lose that the liberals. But he continues: Ultimately, though—with a conservative Supreme Court with at least two justices hostile to LGBT equality—the prospects for a winning outcome there are uncertain at best. We cannot relent for a single moment any of our other efforts to advance LGBT equality in general, and marriage equality in particular, at every opportunity.Unfortunately, the article segues, as all Vanguard articles seem to do, into a request for money for the Center.After District Court on the road of appeals is the Ninth Circuit Court of Appeals. If our side wins, the win would very likely be “stayed” until the appeal is completed, and that means two more years. Cole goes into the internal wiring of the Circuit courts and how unlikely they are to make any sweeping decision on anything, even though the Ninth Circuit, which rules the western U.S. is more progressive than most others. Conservatives hate it for that reason.

But the whole appeal and counter-appeal thing strikes me as a game that children play to get the best of each other— whether by manipulation, trickery or even violence— while each side knows that the parents could step in at any moment and end the game. Both sides in the equal rights movement have reason to fear “the parents” on the Supreme Court—not because they would necessarily be right in their decision, but because they seemingly have the legal right to make a final decision at least for a generation or more. As we have seen in far too many cases in the last decade, the legal reasoning of U.S. Supreme decisions often comes down to “because I said so.”

This is why court watchers are so diligent. Add to this mix the fact that President Obama does not have a blank check to appoint more liberal voices to the Supreme Court. He himself had a constitutional law background as an attorney, but his power to appoint open-minded justices to the high court and ease the court into a more liberal mind-set rests on a couple iffy situations: one, if one of the sitting justices retires or dies in office during Obama’s term; two, whether the first Justice to retire or die on the bench is identifiably conservative or liberal; and three, if OBama doesn’t lose his grip on the Senate before a Court vacancy occurs.

[6] Tonight Associated Press has reported that Justice John Paul Stevens, who was appointed by President Ford in 1975, has indicated he will definitely retire in the next three years and will soon if this term will be his last. Stevens, who turns 90 in April, is considered the leader of the court’s “liberals.”

And on number two, we have to seriously consider that Congress could flip back to being controlled by the conservatives in the midterm elections. It is not merely possible, it’s likely that a conservative-controlled Congress would introduce a federal constitutional amendment to ban all same-sex marriage.

— Pastor Dan Hooper