Prop. 8 Ruling Puts Obama, Kagan in Spotlight

WASHINGTON (Aug. 5) -- A federal judge's decision overturning California's voter-approved ban on gay marriage may take years to get to the U.S. Supreme Court. But the political fallout has already begun.

Judge Vaughn Walker's 136-page ruling eviscerating Proposition 8 as unconstitutional brought roaring back to life a divisive social issue that a few years ago dominated political discourse but had recently taken a back to seat to economic anxiety. And its timing, on the eve of Elena Kagan's Senate confirmation to the U.S. Supreme Court, is a reminder that the issue won't be settled until nine justices have their say.

"Judge Walker has launched the first salvo in a national culture war," said Brian Brown of the National Organization for Marriage. "There will be electoral consequences for candidates who do not stand up and support marriage. Either they stand on the side of activist judges or they allow voters to have their say. There is no middle ground."

The Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference, called the ruling "a cultural wedge issue that has the potential to galvanize Republicans, conservatives and Blue Dog Democrats around the defense of biblical marriage."

"It's a judicial coup d'etat ... that has taken over the body politic of this nation," he said.

The decision set off infighting among conservatives. Mathew Staver of the Liberty Counsel criticized lawyers for bungling the case. "I am distressed that Alliance Defense Fund (ADF) presented thin evidence to support Prop. 8," he said. Still, he was confident the decision would be reversed on appeal.

Jordan Lorence, a lawyer working with the ADF, told AOL News that Walker made clear early in the trial that he "was inclined to strike down Prop. 8" and accused the judge of ignoring written evidence and testimony during cross-examination. Asked why his side called only two witnesses, one of whose testimony the judge said "provided no credible evidence," Lorence replied, "If we had called 30 witnesses we would have had the same result." Walker "created new heights of judicial activism" in his ruling, he said.

Gay rights activists, of course, disagreed. On the day after, they claimed new momentum and pointed to polls that, while showing a majority of Americans oppose same-sex marriage, also indicate a growing acceptance of gay relations -- especially among young people. Many downplayed the political fallout from the decision even as they heralded it as a historic victory.

"This isn't 2004," said Human Rights Campaign spokesman Fred Sainz, referring to the year Massachusetts became the first state to legalize same-sex marriage and a voter backlash outlawed it in 11 states. "People have moved on because they have seen thousands of examples of loving, committed same-sex couples that are no different than they are. Cultural warriors seem very dinosaurlike to people these days."

Political analysts said voters had other things on their minds.

"When unemployment is at 9.5 percent and the economy is in horrible shape, you have a war with escalating casualties and a very controversial agenda on a variety of economic issues like health care and cap and trade, no social or cultural issues will have much impact," said Charlie Cook, editor of The Cook Political Report. "This is a mega-issue election, not a wedge-issue election."

John Pitney, a political scientist at Claremont McKenna College in California and a former GOP congressional aide, said gay marriage will provide Republicans with just one more piece of evidence, along with the recent ruling on Arizona's immigration law, that "show the danger of activist judges and the need to uphold federalism." Still, he predicted most voters will stay focused on pocketbook issues.

Shades of Gray at the White House

The ruling once again put President Barack Obama on the spot.

The White House put out a statement saying, "The president has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans."

White House senior adviser David Axelrod told MSNBC that Obama "does oppose same-sex marriage but he supports equality for gay and lesbian couples." The president favors civil unions for same-sex couples instead but also believes marriage is a state issue.

That neither here-nor-there position has irked gay rights activists. Sainz said gays are "disappointed that their president does not stand with them" on marriage. Still, Obama has done more for gays and lesbians than any predecessor, signing into law civil rights protections, extending benefits to gay federal workers and starting the clock ticking toward the end of the military's "don't ask, don't tell" policy.

Evan Wolfson of the group Freedom to Marry said Obama "has rightly opposed measures aimed at excluding gay couples from marriage, but has failed to make the case effectively to the American people because he has not yet spoken authentically in support of the freedom to marry. He has the 'what,' equality, right, but has not embraced the 'how,' the freedom to marry, thereby convincing and satisfying no one."

Cal Jillson, a political scientist at Southern Methodist University in Dallas, said Obama is roughly in the same place on gay marriage as he is on immigration. "Major chunks of the Democratic constituency want more movement faster, but the broad middle of the American public, independents in electoral terms, want stability rather than more change," he said. "Obama is caught between revving up the base and trying to win back independents" he will need for re-election in 2012.

The president's best option, said Pitney, is to stick to his personal opposition to same-sex marriage but "shift the focus to respect for the courts, the Constitution and the rule of law" when asked his view on the California decision.

Eyes on the Court

Walker's decision was the second in less than a month in which a federal judge ruled in favor of gay marriage. It came after a narrower ruling in Massachusetts in which a judge ruled the federal Defense of Marriage Act violates the constitutional rights of gay married couples there to equal protection under the law.

Both cases are likely to reach the Supreme Court, which will include Kagan, who was confirmed by the Senate today in a 63-to-37 vote.

Curt Levey of the conservative Committee for Justice said this latest ruling focuses attention on Kagan's "troubling record of gay rights activism and, more generally, on what's at stake if Kagan brings her 'living Constitution' philosophy to the Supreme Court." He warned, "A senator voting for Kagan should be willing to acknowledge that their vote is essentially a vote for same-sex marriage."

Kagan's replacement of liberal Justice John Paul Stevens won't change the partisan makeup of the court. It remains the most conservative in decades. But those nervous over how swing Justice Anthony Kennedy would vote on the matter are reviving talk about amending the U.S. Constitution to limit marriage to opposite-sex couples.

Gay marriage is illegal by statute or constitutional amendment in 41 states following a spate of state ballot measures to head off Massachusetts-style matrimony. The state-level actions removed the urgency for Congress to act and gave fence-sitters like Sen. John McCain a handy excuse to stay out of the fray. In 2006, after a long and contentious debate, the Senate fell short of the votes needed for a federal marriage amendment.

"I suspect conservatives might want to reintroduce a narrow federal marriage amendment, which would keep courts from reading the federal Constitution as requiring recognition of same-sex marriage. Such an amendment might actually pass," said UCLA law professor Eugene Volokh, founder of The Volokh Conspiracy blog. "Even if it doesn't, it could help persuade voters that conservatives' constitutional views are more in line with the voters' constitutional views."

As for the gay rights movement, still glowing over its big win in court, Sainz said it "isn't putting all of its eggs in the judicial basket."

Activists are working to add New York and Minnesota to the five states and the District of Columbia where gay marriage is legal. They also hope to put the issue back on the ballot in California and Maine as well as Oregon and Washington state in 2012.

Said Sainz: "We are pursuing marriage equality in a whole host of ways: judicially, legislatively, electorally and, lastly, by changing the hearts and minds of the American public."