Dan Walters: California gay marriages may hinge on one man
By Dan Walters Published: Sunday, Jan. 31, 2010 -

The federal trial on the constitutionality of California's gay marriage prohibition, which voters passed in 2008, has been more a sociological and philosophical debate than a traditional evidentiary hearing.

The testimony and the opposing lawyers' arguments so far boil down to this: Some folks believe that same-sex couples should have the constitutional right to marry, and other folks deny there is such a right.

The debate is more philosophical than legal because this is virgin territory for the federal courts, no pun intended. Ultimately, it boils down to the personal views of the judges who will pass judgment as the case makes it way through the federal courts, even if they couch their decisions in dense legalese – and perhaps just one judge's views.

Gay marriage advocates may have hoped that challenging Proposition 8 in liberal San Francisco would give them an edge, but the case landed with Vaughn Walker, the chief district court judge who was appointed to the bench by Republican President George H.W. Bush two decades ago (after an earlier nomination was blocked by gay rights groups).

Walker has given no overt indication of how he leans. But regardless of what he decrees, the case is headed up the ladder to the decidedly liberal 9th U.S. Circuit Court of Appeals and then the U.S. Supreme Court. And if it makes it that far, Justice Anthony Kennedy may have the last word on whether barring same-sex couples from marrying is, indeed, a violation of their constitutional rights.

The nine Supreme Court justices are sharply divided into four-member liberal and conservative wings. Kennedy, who hails from Sacramento and is a one-time aide to Gov. Ronald Reagan, has been the decisive fifth vote on many issues, most recently a landmark decision to overturn restrictions on corporate spending on political campaigns.

Kennedy is notoriously difficult to predict, certainly not as conservative as those on the right would prefer, but not an automatic vote for the liberal side of burning issues, either.

Same-sex marriage proponents might hope that Kennedy would respond to what is clearly a trend toward acceptance in the broader public, the 2008 California vote notwithstanding – just as interracial marriage finally became socially and then legally valid.

The state Supreme Court decision striking down an earlier anti-gay marriage law – written by Chief Justice Ron George, another center-right Republican appointee – points in that direction.

But opponents of same-sex marriage also might hope that Kennedy, who is not by nature a legal trailblazer, would see no federal constitutional right and defer to the decisions of legislators and voters in individual states.

No matter which way it goes, it demonstrates anew that California is on the sociological cutting edge.