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When Worlds Collide: Prop 8 and Sotomayor

(AP Photo/Marcio Jose Sanchez)
On any other day, the California Supreme Court's momentous same-sex marriage ruling would have dominated legal coverage. Not because the Court's 6-1 ruling endorsing Proposition 8 was surprising — it wasn't. Not because vocal, demonstrative crowds had gathered at the courthouse to hear news of the ruling — they did. Not because thousands of already-married same-sex couples in California now have special status — they do.

The marriage ruling would have gotten wall-to-wall coverage today if it weren't for the White House's Supreme Court surprise announcement because the ruling and the arguments upon which it were based touch upon virtually every controversial legal topic we are going to see debated, relentlessly, until Judge Sonia Sotomayor is confirmed to the Court sometime this summer.

Reckless charges of "judicial activism"? Check. Had the California Supreme Court Justices blown off Prop 8, you would have heard the cry from conservatives from San Diego to Rockland, Maine. After all, what was Prop 8 if not the expressed word of a majority of voters in California who decided that they don't want same-sex marriages legal there? And what would a court reversal of such a democratic thing be but not "judicial activism," the silliest phrase in a season full of silly ones?

Expressions of "empathy" and "compassion" from sitting judges? Check. The California court could have tossed out all same-sex marriages in California — you would also in that situation have heard a great hue and cry -- but by a unanimous vote decided to let lawfully married couples stay so despite the import of Prop 8's future ban on such unions. And what was that vote if not an expression of compassion for the thousands of same-sex couples who were lawfully wed?

Worries about judges making "policy" decisions from the bench? Check. Well, this is actually an easy one. Every time a judge votes in a case, he or she is expressing a policy choice. That choice in this case was to back the constitutional amendment banning same-sex marriage going forward but at the same time declare it limited only to future same-sex marriages and not past ones. It was a unanimous choice from the same justices who so bitterly were divided 4-3 on the matter last year, before Prop 8 passed.

The battle over same-sex marriage also tracks the Sotomayor nomination fight because both stories highlight the hypocrisies of the eternal struggle between ideologies and parties forced to take internally inconsistent views to support the issues of their day. Conservatives who don't accept decisions supported by the majority (like the one electing President Barack Obama or the one supporting abortion rights) suddenly are all for democracy when it works their way (like it did with Prop 8). And liberals, who wanted so desperately to harken back to Justice Alito's salad days, and who borked Robert Bork, now seek a quick hearing and coronation for Judge Sotomayor.

Whether the next battles take place in court or in voting booths, the war over same-sex marriage isn't over in California. And whether the next battles take place behind the bench or in a Senate hearing room, the war over the political, partisan make-up of the Supreme Court also remains endless. It's nice to see the theory and the practice in harmony, if only for a day.






(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.