Well, it looks like tomorrow is the big day. Judge Walker will finally issue a ruling in the federal Prop 8 litigation:

District Court Judge Vaughn Walker will issue a decision Wednesday on the constitutional challenge to California’s Proposition 8, the ban on same-sex marriage, according to a court announcement today.

Walker’s written order will be released electronically Wednesday – no hour was given – and will later be available for public review in federal courthouses in San Francisco, Oakland and San Jose.(SacBee)

I am actually fairly optimistic here that Judge Walker will strike down Prop 8, at least as far as the inequity between married same-sex couples and those who missed the cut-off.  That much, at the very least, seems to be something of a narrow decision that many judges like to make.  

However, Judge Walker seemed to be hinting at wanting to take a bigger stand during the closing arguments.  Now, hints are essentially meaningless. I might as well try reading my cranium for clues, but that optimism in me keeps rearing its head.

In legal terms, it all comes down to two questions:

What standard should the court review Prop 8 under?

How does the court complete the analysis based on that standard

Now, as I’ve mentioned in the past, there are basically three choices for the standard: “rational basis”, intermediate, and strict scrutiny.  Under strict scrutiny, getting a law that discriminates to pass constitutional muster is extremely difficult.  It would have to be narrowly tailored to an important state interest.  On the flip side, under rational basis review, the court need only find a rational basis for the discrimination for any state interest whatsoever.

Now, that last one sounds pretty broad. However, the Defense of Marriage Act (Section 3) was recently struck down under this standard.  In that case, the Court said that the federal government simply had no interest whatsoever in regulating marriage.  Now, this is slightly different, as we are talking about a traditional basis of state power and a state regulation. But all that is to say that even if Judge Walker uses the rational basis test, all is not lost.

The decision will appear on the Northern District’s website some time tomorrow.