Con Law Expert Gordon Silverstein: Prop 8 Ruling Could Cost...

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JONATHAN COHN AUGUST 4, 2010

Con Law Expert Gordon Silverstein: Prop 8 Ruling Could Cost the Gay Rights Movement

With news breaking this afternoon that Prop 8 (an amendment to California's constitution banning gay marriage) has been overturned in a federal court, Citizen Cohn reached out to Gordon Silverstein, assistant professor of political science at the University of California-Berkeley, for his take on the ruling. Silverstein is an expert in constitutional law and American politics and the author of Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics. While a proponent of the ruling, Silverstein speculates on how it might play in the Supreme Court and says today's verdict could undermine the policy goals of the gay-rights movement in the long term: 

Judge Vaughn [R. Walker] is probably right, but by drawing the sharpest possible line in the sand, his principled decision might possibly prove to be a moral victory but one that could undercut the deeper social policy goals advocates had in mind in pushing this forward as a legal and constitutional case.

Walker took the strongest line imaginable—Prop 8, he said, can't even pass the lowest, least demanding constitutional test there is for any sorts of rules that discriminate: The Rational Basis test. If you can show even the barest rational justification for a law, you can survive this test. Prop 8, Walker ruled, fails.

This means, of course, that if you measure it against the far tougher standard that is typically applied in cases involving suspect classification (like race, or religion) it would, of course, fail miserably.

This ruling, though, leaves the Supreme Court little wiggle room. Yes, they could of course agree with Walker, and strike down Prop 8—along the way fundamentally raising the barrier to any rules that might adversely affect homosexuals or same-sex couples. They could do that—but hard to believe they will.

At the other extreme, Walker's line-in-the-sand invites the Supreme Court to make a clear statement, to draw their own line, which would formally and explicitly carve out areas where such discrimination would in fact be constitutional. And by opening the door for such a ruling, those who brought this case to Walker's court in the first place may live to regret that choice.

The alternative, of course, is politics. Change minds. Elect candidates. The original Prop 8 passed in large measure because so many Californians who did not favor Prop 8 failed to participate, failed to vote. A political campaign is the sort of thing that can persuade and change minds—and that is, in the long run, the only way to truly lock in change. Judicial rulings can change behavior, but not minds. At least not by themselves.

An adverse ruling from the Supreme Court would only make it that much harder to effect change through political channels.

Walker might well say that his job is to read the constitution. Period. And he's right, as was his decision, I think. But Walker didn't force gay marriage advocates to bring this case—that was their choice. They will probably savor their moral and constitutional victory in the short term, but may regret it down the road.

This case is a stark reminder of a harsh choice that rights advocates often have to make: Is it right to sacrifice moral and constitutional claims in the short term to achieve long-term policy goals? Or, insist on the moral high ground, regardless of the practical costs?

Could be, though, that Walker has drawn his line so starkly that even the Roberts Court will be persuaded. Could be. But not likely.

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posted in: jonathan cohn, politics, california, gordon silverstein, supreme court, university of california

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