Well, today is the day.  Sometime this afternoon, we’ll get our decision in what will go down as one of the most anticipated decisions around these parts since…well…last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive.  No matter which way Judge Walker goes, this is history in the making.  It’s a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)

So, with that as background, what are we looking for today?  How do we win? How do we lose? And what defines a win?  Well, I said yesterday that I’m optimistic, but there’s more than one way to skin the cat here.  So, let’s just go through them, and I’m sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let’s start with the downers.

1. LOSE – Prop 8 is a permissible act of the people acting legislatively.
   
   Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
   
   Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
2. Win – The implementation of Prop 8 is unconstitutional.
   
   This is how we win, without getting everything we really want.  This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states.  The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed.  This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs.  It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality.  And it further muddies the underlying issues when what we really need is clarity.  Could it happen? Yes, it very well might.  But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
3. WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
   
   This would be our ultimate victory, and really, what Olson and Boies are going for in this case.  As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8.  However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8.  In other words, don’t make wedding plans just yet.

I shouldn’t quite leave that logic of our win hanging in the breeze quite so much, so I’ll pull a quote from Loving v Virginia to show you the Supreme Court’s logic in that case.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law.  If you’ve read much of the history of the era, you’ll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade.  Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.  

I’ll not give you the whole wikipedia version of substantive due process, but long story short, it protects fundamental rights generally.  But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument.  As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won’t rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws.  We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.

But, for now, this is just speculation.  The real thing is just around the corner.