DriveThru – Get What You Need

…except for closing arguments (to be set after Judge Walker has finished digesting the evidence), a decision (probably in a few months), an appeal to the 9th Circuit (a decision in a couple years), and a probable trip to the Supreme Court. It could take several years to complete the process. It behooves both sides in this clash of values over marriage neither to take too much solace from a win in the lower courts, nor despair over a defeat. The issues are destined for the Supreme Court, and no one can confidently predict what the final outcome will be, because the outcome there may depend largely what the makeup of the Supreme Court is by the time the case gets there. I personally am convinced that the constitutional case for traditional marriage is rock-solid, but I’m realistic enough to understand that Justice Ginsburg (and her three liberal friends on the Court) and I agree eye to eye on almost no social issues. As usual, Justice Kennedy is the expected wild card.

Prof. Dale Carpenter, a law professor and pundit who favors legalized same-sex marriage, expresses doubts over same-sex marriage’s chances given the current makeup of the Supreme Court even among its liberal members:

“Like many others, I was dubious from the beginning about this bet. I don’t see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court’s liberal wing in such a decision. I’m not completely convinced that even this liberal wing — Justices Stevens, Breyer, Ginsburg, and Sotomayor — will take on the marriage laws of 45 states. Whatever else one thinks of their constitutional philosophies, the Court’s liberals are not nearly as adventurous or as aggressive as their liberal forebears.”

Maggie Gallagher over at The Corner thinks Olson and Boies chose the wrong strategy to win Kennedy’s vote..