On the Bench

The 'Brilliant' Prop 8 Ruling

Why Judge Walker's decision will hold up.

A judge struck down California’s gay-marriage ban on Wednesday, but gay couples shouldn’t be lining up at the altar just yet: The pending appeal of the law means they won’t be able to marry any time soon. Meanwhile, Slate’s Dahlia Lithwick looks over the federal-court decision overturning the ban and concludes, “nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion.” She also says that anti-gay marriage advocates have no one to blame but themselves, since they merely tried “to assert their way to legal victory” rather than making “even a minimal effort to put on a case.” So will the decision hold up in the Supreme Court, should it make that far? Judge Walker’s decision seems targeted at the Court’s swing justice, Anthony Kennedy—it cites Kennedy’s Romer vs. Evans decision (striking down an anti-gay Colorado ballot initiative) seven times and his Lawrence vs. Texas decision (striking down Texas’ anti-sodomy law) eight times. Lithwick writes, “Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.”