Looking For The Eject Button

The assumption on Judge Vaughn Walker's ruling on Prop 8 and the utterly miserable case against gay marriage presented by the prop-Prop 8 side is that no matter Walker thinks, the only person with an opinion that will count is Supreme Court Justice Anthony Kennedy, who would be the swing vote on the issue.  But Via Matt Osborne in Twitter, there's a growing theory that Prop 8 may actually not be appealed to the Supreme Court for the fact that risk of losing the case -- and a national overturning on gay marriage bans in 30 other states that would lead to gay marriage being recognized across America -- is too much for the wingers to handle.  From Right Wing Watch:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.
So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."

Wildom: So you think the better situation here would be California not to appeal ...

Barton: Well, I'm telling you that that's what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said "on no, you left too many arguments on the table, you stayed technical." And now, knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.

They're afraid, folks.  They know they don't have a secular, legal argument against gay marriage and they are becoming terrified that they will lose if Prop 8 goes before SCOTUS.  They desperately want a Republican president in 2012 to try to shift the court to the right but right now they are seeing a 5-4 decision striking down Prop 8.

As such it's possible that the 9th Circuit decision upholding Prop 8 might be the best route towards getting Perry to SCOTUS as the appeal would be filed by the plaintiffs.  We'll see how this shakes out.

But don't be surprised if the decision is made not to appeal this case.