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There's one big difference between the Ninth Circuit's order granting a stay of Judge Walker's decision and Judge Walker's opinion deciding that the decision should go into effect: reasons.

Walker's order is a brief 11 pages, but it sets out the four standards for issuing a stay, and then tests the arguments the Prop. 8 proponents made against those standards: Do the parties who want the stay have a good chance of winning on appeal? Will they be harmed - irreparably harmed - if the stay is not granted? Will other parties also be substantially injured? Is a stay generally in the public interest?

Eleven pages isn't a lot in the legal world, but Judge Walker does take each of these and argue why he thinks the proponents do not make the grade. Anyone can read his ruling and decide if they agree or not.

By contrast, the Ninth Circuit's order consists of two pages, with a single eighteen-word sentence devoted to the stay: "Appellants' motion for a stay of the district Court's order of August 4, 2010 pending appeal is GRANTED." The rest of the order sets an expedited briefing schedule for the first round of the appeal, specifically focusing on the question of standing.
And that's how gay equality proceeds. The people who support us are happy to lay out the reasons why, and engage a debate. But a whole lot of others are content not having to explain themselves. That, in fact, is the best answer to our arguments: silence or sidestepping.

The Ninth Circuit judges don't have to explain themselves in such hurry-up orders, of course, and they are obligated to set out their reasons once they get to the appeal itself. But for right now, we have once again found ourselves stopped short, armed with arguments unresponded to, just hanging in the air.

Two prominent articles today - one from the NY Times and one in Politico - get right to the core of the problem that minorities face in a democracy. In the NY Times, Lou Cannon offers an interesting view of how Perry v. Schwarzenegger could play out in the gubernatorial race in California. At Politico, Maggie Haberman reports on how the national GOP is avoiding gay marriage as it focuses on the economy as its primary theme. In trying to attract independent voters, gay marriage and other social issues might be a distraction. Larry Sabato, from the University of Virginia sums it up: ""I don't think that moderates and independents get very excited about this."

What neither article discusses - or even mentions - is the question of whether gay marriage is a good thing or a bad thing; whether the constitution's guarantee of equal treatment of the law should apply to same-sex couples or not; whether heterosexual marriage will be affected by same-sex marriage; or any other of those nit-picky little issues that gays keep harping on.

For writers whose focus is politics, that's not too surprising. But that is exactly what the equal protection clause exists to address. In a universe of issues that affect people generally, it is easy for a majority (and in the case of heterosexuals a majority of unprecedented size) to not have much interest in how the law treats a very tiny minority. The economy affects every one of us irrespective of sexual orientation, and that is certainly what this upcoming election is about. That's how politics must work.

But it is not so easy - it is, in fact, virtually impossible -- for the minority to set aside its interest in its own rights until a better time comes along. America is at the stage where moderate and independent voters hold the political balance of power for gay rights. They have the luxury (their own rights not being affected one way or the other) to focus on bigger issues. Or bigger issues to them.

But for lesbians and gay men, the lack of equality we face in the law, and specifically the lack of legal recognition for our marriages, is a very big deal. We have fought for our role in society, and have taken it even as some continue to oppose even our simple, open and proud existence as fellow Americans. We are different from the majority in one thing, sexual orientation, but as varied as everyone in everything else. We have not been given anything, but have had to argue and convince and cajole every step of the way, armed with nothing but the facts and justice and pride and the promises in the Constitution. And we have had successes.

The Constitution guarantees that we have every available opportunity to make our case to the public, and to our elected representatives. But it also recognizes that for a minority - and specifically for a minority that many people simply refuse to accept as having any moral worth - the purely political burden may be unfair. The majority may have other things, what they view as bigger things, on their minds, and may not "get very excited" about the fight for equal treatment. If they feel they have nothing to lose, and nothing tangible to gain from a debate over the rights of the minority, their wishes (which, to democratically elected politicians, are a command) will predominate. If a discussion of gay marriage won't benefit a majority of people politically, then politicians won't bring it up.

That is itself evidence of our progress, of course. During George W. Bush's presidency, the discussion of gay marriage was, indeed, politically profitable, but the profit was for those seeking to keep marriage a restricted club. Today that calculation is a wash. A marriage will be valuable in some states and some districts, but as the Politico article notes, there are places where the benefit will accrue to politicians who oppose same-sex marriage, and there are places where it will accrue to our supporters.

But I hope heterosexuals can read these two articles and perhaps see what it feels like to be a political chit as part of your existence as an individual citizen. To politicians, and to political writers, our rights are a commodity, have a value that can be discussed in the abstract and with a sharp eye for the market. This is certainly not slavery, but it does make you understand what it's like to be bought and sold.

Andrew Sullivan's Dissent of the Day questions this observation from Judge Walker:

"Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage."

This is (the writer argues) nonsense, since there were no such eras, unless you are talking about all of recorded history up to the late 20th Century.

That's true, but it misses the point. Here is the more salient conclusion from the opinion:

"The evidence did not show any historical purpose for
 excluding same-sex couples from marriage, as states have never 
required spouses to have an ability or willingness to procreate in
 order to marry. Rather, the exclusion exists as an
 artifact of a time when the genders were seen as having distinct
 roles in society and in marriage. That time has passed."

The proponents of Prop. 8 want to focus exclusively on justifying heterosexual marriage, but the court was being asked to decide something else. Heterosexual marriage is not at issue in this case. It will continue with or without a decision in Perry v. Schwarzenegger, or any other case. No one is challenging heterosexual marriage.

The relevant question is this: Are there reasons, historically or in the present, to exclude same-sex couples from marriage? That is both a different question from the one most people are accustomed to asking, and a vital one for the constitutional analysis of the issue lesbians and gay men are facing.

The U.S. Supreme Court has long held, very explicitly, that the constitution recognizes a fundamental right to marry. But that can be viewed in at least two ways. First, it could mean the right to marry someone of the opposite sex. That would be a right that only heterosexuals could exercise meaningfully. "Fundamental" in the constitutional sense, means that the government cannot interfere with the right's exercise except for the most compelling reasons. If the right is exclusive to heterosexuals (because it is not just "the right to marry," but "the right to marry someone of the opposite sex") then voters or legislatures can exclude homosexuals from exercising the right.

But it can also be viewed as the courts have actually stated it: a fundamental right to marry. Period. The question is whether the phrase, "someone of the opposite sex" is inherently included in the right.

That was what Judge Walker's opinion was examining. Marriage between heterosexuals has been taken for granted for all of recorded history, not because anyone ever made a decision to exclude homosexuals, but because no homosexuals had the visibility or political strength or will to even try. It was not until the late 20th Century when lesbians and gay men were able to become visible and politically active enough to challenge even laws that made them criminals -- the obvious first priority. And that task is accomplished.

Now is the time to ask the marriage question -- but it needs to be the right question. The anti-marriage forces have been enormously successful in keeping the focus on heterosexuals, and off of homosexuals. The political battles over same-sex marriages are battles focusing on heterosexual grievance, anxiety and privilege. Homosexuals do not play any role onstage in the fight against same-sex marriage. The Prop. 8 campaign was a classic example of an argument of, by and for heterosexuals.

Political battles can be over anything, or nothing. That is the nature of politics. But when it comes to some rare things that are important enough to be set out in our collective aspirations, known as the Constitution, real and substantial justifications are required along with a vote. Fundamental rights cannot be taken away by majority vote. And the equal protection of the law, by definition, cannot be abridged by a majority of any size.

Perry v. Schwarzenegger is the first opportunity in a federal court for exploring and answering that kind of question. No one is asking whether heterosexuals have to defend their marriages. They don't. The question - the only question - is whether there are reasons to exclude homosexuals from that vital and deeply human institution.

Opponents of same-sex marriage had every opportunity to offer any such reasons. And any one would have done. But in the end, they continued their pathological focus only on themselves, and failed to answer the question they were being asked.

Here's the only really striking thing about Judge Vaughan Walker's opinion in Perry v. Schwarzenegger: Its 136 page length includes 108 pages of facts -- 108 pages of dry, straightforward, meticulous, and ordered citations to the evidence in the trial.

It might be easy for a layperson to misunderstand that. This is not a sexy opinion. There are no rhetorical fireworks, no forging of new and creative legal theories, no soundbite-worthy quotes, and not a trace of grandstanding. This is a very competent and workmanlike opinion from a trial court judge who was doing his job.

That job is to (1) allow both sides ample and fair opportunities to present the facts in the dispute; (2) determine which are the most credible and relevant facts, given the existing law on the subject; and (3) apply those facts to that law in order to reach a decision about which side should prevail.

Mission accomplished.

Most people will focus on this as a legal opinion, but that isn't its strength, and it shouldn't be. Trial judges are primarily there to gather the facts, not theorize about the law. Despite temptations from some excellent lawyers who know their way around the caselaw, Judge Walker didn't accept any offers to kick the tires on novel and edgy legal theories. Instead, he relied on longstanding federal constitutional law - specifically that old workhorse, the Fourteenth Amendment -- and applied it in the most modest way possible, using the most generous standard available to the proponents of Prop 8: they only had to show that there was some rational basis for the voters to distinguish between same-sex couples and opposite-sex couples. Any rational basis would do.

The proponents had every opportunity to build their case over the many months of discovery, depositions, witness-preparation and actual testimony at the weeks-long trial. Virtually all of their evidence is laid out in those 108 pages of facts.

And it isn't much. In fact, at one point one of their lawyers simply said they shouldn't have to present evidence, shouldn't have to come up with actual facts to support their case.
Contrast that with the plaintiffs challenging Prop. 8, who brought forward a small battalion of witnesses, both civilians and experts, introduced what we can only imagine to be millions of pages of documents and depositions, hours of video and taped recordings, and enough motions, counter-motions, memoranda and oppositions to memoranda to - well, to win their case.

And in a nutshell, that's where we now stand as a nation on the issue of same-sex marriage. Those of us who support same-sex marriage not only believe we are right, we are making that case based on evidence in the world around us. Those who oppose same-sex marriage deeply believe they are right and have always been right, and have a very hard time comprehending that they actually have to defend themselves. Where is the need for evidence, for facts?

But what they have historically taken for granted is now in question. Yes, marriage has always been understood as being between one man and one woman (with biblical polygamy confusing this simplicity), but why? What is it about marriage that makes it an unsuitable - to some, an unimaginable - legal and social institution for same-sex couples?

During all those centuries when no one asked these questions, no one ever needed to answer them. But we are asking the questions now. And under the rules that govern our country - under the constitution - we have charged the courts with providing the forum to provide the answers.

Judge Walker's opinion does exactly that, and not a thing more. He opened the court - our court - to both the proponents of Prop. 8 and its challengers, and let them do the best they could to answer the questions we may not have asked in centuries past, but have a profound need of asking now.

Anyone can read those 108 pages (though few will), and find little to criticize there. The only criticism from same-sex marriage opponents will be the bottom line, the conclusion that there really isn't a rational reason, today, for the law to treat heterosexual couples as a favored class over homosexual couples.

Perry v. Schwarzenegger lays out all the reasons offered, and each one erodes under the steady drip of the evidence that was presented. In the end, all that is left is fear and superstition about homosexuals. Those are things that can motivate voters, but the constitution does not credit them as justifications for the law.

There are any number of good reasons to read Jonathan Rauch's "Red Families, Blue Families, Gay Families and the Search for a New Normal," not the least of them being the lack of drama, insult or animus toward our opponents. Whatever can be said of Jon, he makes a reasoned, moderate and fully-examined case for equal marriage.

Maggie Gallagher knows Jon, has spent time debating him and talking with him, and is fully aware of his views, as well as his demeanor. Yet in listening to her public pronouncements now, you would never know she was aware of non-hateful, nonviolent, rational or empathetic homosexuals. Her current rhetoric focuses solely on lesbians and gay men who hold her and her supporters in contempt. To be fair, there are plenty of those.

But what is frustrating is how Maggie - and, in fact, nearly all of the anti same-sex marriage crowd - fail to show us the respect and humanity that Jon displays so generously.
Jon does not shy away from directly confronting the best arguments against his own position. This piece, like most everything else I've read of his, lays out a fair and clear articulation of the opposition, and tries to understand it, the better to answer it.

Here is the test of good faith in political debate: Each side should be able to convey the other side's position to the other side's satisfaction. Jon, I think, meets this standard. Some opponents of same-sex marriage are very concerned about homosexuality in general, and feel that same-sex marriage would normalize homosexuality. That, in their view, is a socially dangerous thing to do. Others, and Maggie is in this camp, are less concerned with the normalization of homosexuality than with what they view as the abnormalization of the conventionally defined family. While there is certainly some compression and simplification here - Jon is, after all, not making their argument, just hoping to describe it fairly - I think it is hard for same-sex marriage opponents to disagree with his summation, though they would certainly want to elaborate.

Compare that with the way Maggie approaches the political debate. The very heart of our argument is equality; the law treats heterosexuals differently than homosexuals, and, in the vast majority of states, virtually ignores the existence of same-sex couples as families. While I have heard Maggie refer respectfully to lesbians and gay men of her acquaintance, she does not try to engage our argument and respond to it; she simply avoids it. She doesn't care about what happens to same-sex couples under the law. Her entire focus is on the rights of heterosexuals, and their role in society.

That is consistent with her concern about heterosexual families, but her inability or unwillingness to engage our best arguments shows that she is not interested in having a debate; she is content to continue a monologue. But heterosexuals are not the only people in the country, and the failure to even try to understand the world from the point of view of homosexuals is very strong evidence of a blithe ill will, at best, and intent to discriminate against a minority at worst.

Compare Maggie with David Blankenhorn. He, too, knows Jon, and has spent time in debate over same-sex marriage. But he is not afraid to acknowledge that we do, in fact, have an argument that merits response. This has harmed his case (to the extent he wants to preserve exclusively opposite-sex marriage) because it necessarily concedes same-sex couples are, in fact, being treated unfairly. His testimony in the Prop. 8 trial was extremely damaging to our opponents only because it was candid and humane. Every trial lawyer knows these can be fatal qualities in a witness, however valuable they are in a human being.

Aside from Blankenhorn, there are virtually no opponents of same-sex marriage who seem willing to treat us with the courtesy and dignity that Jon regularly displays, to actually articulate our side and then explain why we are wrong. I won't claim that Jon is representative of the kind of argumentation I prefer, but there is far more of it in support of same-sex marriage than there is in opposition.

That asymmetry is the source of the annoyance and peevishness among our supporters that Maggie exploits so well. She continues to win the imaginary debate she is having with herself, but she does her cause no honor by ignoring the very real arguments that could prove her wrong. She'd have done well to learn something from Jon while she had the chance.

NOTE: In the Comments, Jorge correctly points out that I'd inadvertently included the wrong link to Maggie's current rhetoric. I've fixed it to link to the correct video of Maggie calling us out for being hateful because we disagree with her.

Another great piece by Jack Balkin, this time laying out six possible scenarios for same-sex marriage in light of the district court decisions from Massachusetts.

Again, Balkin is primarily concerned with the political implications of constitutional decisions, and again he is absolutely on target. Lesbians and gay men don't, unfortunately, have the luxury of viewing their constitutional right to equality simply as a guarantee. It comes, if it comes, with political strings attached, and those strings are directly controlled by archaic but still potent misunderstandings about what homosexuality is.

In the end, Balkin makes lemonade out of the lemon of a potential U.S. Supreme Court decision upholding Section 3 of DOMA, the one that prohibits the federal government from giving any sort of recognition to same-sex couples lawfully married in their own state of residence. A decision upholding Section 3 would take us out of the courts and put the action back where pure politics would suggest it ought to be - the states. He posits that in perhaps a decade we might be able to go from six marriage-recognizing states to twenty-six.

If that effort only involved getting legislatures to enact same-sex marriage (or civil unions; I'd be happy with civil unions as a political compromise), he might have a point. But this is where Balkin uncharacteristically misses an obvious and extremely important point. The legacy left to us by Karl Rove is a national landscape where voters actually changed their state constitutions - not just their statutes - to prohibit same-sex marriage. A protection for the minority against the majority was enlisted as a protection of the majority against that minority. Prejudice carried the day as a political tool to win short-term advantages. Generations of misunderstanding and ignorance were leveraged and elections were won. Those misunderstandings, that ignorance, have now been enshrined in state constitutions across the land as principles by which those states will govern themselves.

Certainly in some states like California, we can return the equality our state constitution guaranteed prior to Prop. 8 with a majority vote - though it won't come easy. Other states are not so fortunate. For them, the political battles for same-sex marriage will be uphill and in the snow.

It's easy to talk about the virtue of political action. But if there ever was a situation where the ordinary constitutional rules have been disregarded or turned utterly upside-down, where constitutional protections have been torn up and thrown away, same-sex marriage is that case.

In that context, then, the political reaction to a federal court victory is something I fear a bit less than Balkin and others. At some point we need to stand up and say that the principles and plain words in our constitution actually mean something. Damage has been done to the ideals we jointly established for our democratic republic. The equal protection clause was put there for a reason. The equal protection clause was put there for this reason. Heterosexuals can minimize that in deference to politics. But sometimes -- now in particular -- lesbians and gay men can't.