Timing May Be Everything on Gay Marriage Appeal

There’s no way of knowing for certain how the three appellate judges presiding over the gay marriage case will vote. If all goes to script, though, the two Republican appointees — William McGuiness and Joanne Parrilli — will outvote Democratic appointee J. Anthony Kline and rule that there is no constitutional right to same-sex marriage.

If they rule as expected — and when expected — they actually could be doing Democrats a huge favor.

With Gov. Arnold Schwarzenegger’s poll numbers improving, Democratic challenger Phil Angelides recently seized on the right to gay marriage as a campaign issue. In years past this might have seemed like political suicide, but as S.F. Weekly columnist Matt Smith pointed out this week, California Democrats increasingly see gay rights as a winning issue, not a losing one.

The First District Court of Appeal has 90 days from the July 10 argument to file its opinion — which means we can expect it, oh, about a month before the election. If Parrilli or McGuiness sides with Kline and strikes down the marriage ban, the issue is neutralized as far as the governor’s race is concerned. Republicans might be unhappy, but they couldn’t blame Schwarzenegger because it was Pete Wilson who appointed Parrilli and McGuiness to the appeal court.

If, on the other hand, the justices take the more conservative route — if they conclude that same-sex marriage is an issue best left to the Legislature (and the governor) — it makes Republicans happy but has the potential to galvanize the Democratic base behind Angelides just weeks before the election. All on account of a ruling that will almost certainly be reviewed — after the election — by the California Supreme Court.

Of course, the justices could avoid the bad timing by asking for supplemental briefing, which would allow them to extend the 90-day filing deadline. But they wouldn’t do that, would they?

— Scott Graham

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