We spoke Wednesday morning with Ken Upton, a senior staff attorney with Lambda Legal who’s based in Dallas, about the potential legal implications of this afternoon’s expected ruling in the Prop 8 case. Specifically, we asked Upton what the ruling could mean to folks in Texas, and why we should care.
Upton noted that even if U.S. District Judge Vaughn Walker strikes down Prop 8, it’s likely that the decision will be put on hold pending appeal, meaning no same-sex marriages will be performed in California.
“In the short run, it’s not going to do anything as a practical matter because it will be stayed,” Upton said of today’s decision. “Nobody’s going to get married in California, and the decision won’t be the final decision, because it’s going to get appealed at least once. As a practical matter, it won’t really do anything, but it will start the ball rolling on a path that could eventually do something.”
Upton said he is optimistic Walker will strike down Prop 8.
“I read the transcripts, and I heard the arguments, and I read the briefs,” Upton said. “The law is strong in our favor and the evidence was I thought very persuasive in our favor, so it won’t surprise me if he rules for us.”
But Upton added that the key to today’s ruling is not whether Judge Walker upholds or strikes down Prop 8, but the manner in which he does so.
“The result won’t be the final one anyway,” he said. “At this point, he’s just firing the first salvo if you will. What will really be interesting is how far he goes. What will he say about the constitution and how it protects gay people? What level of scrutiny will he give it? Will he talk about marriage itself or will he talk about discrimination against gay people? The immediate effect of it will be more one for lawyers to dissect than it will have any practical effect. It’s going to be years before we know the ultimate result.”
Despite minimal practical impacts, Upton acknowledged that a victory today will give the LGBT community a psychological boost.
“It feels good to see courts do what they’re constitutionally required to do, and that is be a check on government and the political arms of government,” he said. “One colleague suggested that everybody have a bottle of tequila in their office, and once we win, every time the other side calls him [Walker] an activist judge, take a shot, and see how long it takes to get drunk.”