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June 01, 2009
Parallel Civil Rights
I've heard a lot of gnashing of teeth from friends in the pro-gay marriage community about the new equal protections case brought by Ted Olson and David Boies. There seems to be a lot of skepticism that this is a false flag operation to set back the movement to legitimize gay marriage.
I have a quite different take. First of all, there has been a sea change for the better after Prop 8. Governor's vetos have been overridden and in general gay marriage is on the march in the States. The California Supreme Court got the Prop 8 decision right on the law while being fully cognizant that that ruling's result was unjust. That's where this case kicks in. As David Boies put it, reasonable people can disagree about the timing of the case, but I think this is on even better ground than the case that became DC v. Heller was at the time of its filing.
The fundamental question is whether Justice Kennedy will extend Loving v. Virginia to sexual orientation. I believe he will. Either way, I expect the plaintiffs to prevail most of the way through the 9th Circuit. One strategic outcome may be that neither side appeals for Cert. Very interestingly, Nordyke and McDonald/NRA may pave the way for a Privileges and Immunities challenge as well.
I'm stealing the line, but I've always been for married gays with guns in their closets.
Posted by hoffmang | June 01, 2009 06:47 PM