On Monday, Perry v. Schwarzenegger—the first legal challenge to the constitutionality of Proposition 8, California’s 2008 ballot initiative banning gay marriage—began in San Francisco. No matter what the outcome, the case is expected to make it to the Supreme Court on appeal.
Ironically, many liberals have been the most outspoken critics of the lawsuit, and for a very good reason: There is a very good chance that this lawsuit will not succeed. After all, 45 states have laws prohibiting gay marriage, only one court (the Iowa State Supreme Court) in the entire country has ruled against gay marriage bans, and the Supreme Court is not very fond of staying out in front of public opinion. The most famous example of the Court’s social progressiveness*—Brown v. the Board of Education—had Chief Justice Earl Warren as a champion; forgive me for skepticism, but it’s hard to imagine John Roberts going to bat for this case. Continue reading