Stuart Taylor, Jr. on the Particulars of Overturning Prop 8 in California

On Wednesday, a federal judge in California overturned the state’s ban on gay marriage, better known as Proposition 8. Who better to hash out the specifics than our legal whiz Stuart Taylor, Jr.?

Taylor, a contributing editor at Newsweek and National Journal, has mixed feelings about whether Prop 8 should have ever been on the ballot in the first place in 2008, when a statewide referendum struck down a judge’s previous decision to legalize gay marriage.

“I support gay marriage wholeheartedly,” said Taylor. “But I don’t much like the idea of a judge ordering it and kind of short-circuiting the democratic process.”

Though Prop 8 has been overturned, the judge in the case issued a “stay,” meaning there will be no rush to the courthouses to perform gay marriages just yet. “He’s going to decide soon whether to lift the stay, and if you lift the stay, gay marriage can go forward,” Taylor explained.

Surprisingly, some gay marriage advocates think it would be wise to continue the stay, because lifting it could lead to commotion that Taylor thinks might rattle the higher courts that will ultimately decide the fate of gay marriage.

After the judge rules on the stay, the next stop for this case, in which attorneys David Boies and Ted Olsen argued the United States constitution creates a fundamental right to be married that is broad enough to include marrying someone of the same sex, is the United States Court of Appeals for the Ninth Circuit.

“That’s a pretty liberal court,” Taylor said. “Although it’ll go first to a three-judge panel that’s chosen randomly, and you could end up with two Conservatives.”

Whichever side loses the panel hearing then has the option of asking all the judges on the Ninth Circuit to review the panel’s decision, or going straight to the United States Supreme Court.

“Hardly anyone doubts it’ll go to the United States Supreme Court,” said Taylor, adding, “This case will probably be, for better or for worse, the Roe vs. Wade of the current era.”

Interestingly, the federal judge in California who overturned Prop 8 is gay, but Taylor called the idea that he should have recused himself from the case “idiotic.”

“We all have a stake in this whether we’re gay or not gay,” he said.

Imus, for one, definitely has a stake in the matter: a licensed, ordained minister in the Universal Life Church, he’s already been requested to perform several gay marriage ceremonies. At present, same-sex unions are only legal in a handful of states like Vermont and Iowa, causing a conundrum for the I-Man.

“I’d like to fold it in with a vacation,” he said.

-Julie Kanfer