BLOCK: I've been reading some analysis of this ruling, and folks are concluding that this was an opinion that was specifically targeted at the U.S. Supreme Court and specifically at Justice Kennedy. What does that mean?
Prof. LEVINE: Well, because I think so many people assumed that this is going to be a five-four opinion if it gets to the U.S. Supreme Court, and that Justice Kennedy is going to have his now-familiar role as the swing vote, you have to write an opinion that's going to appeal to Justice Kennedy. And Justice Kennedy, after all, has written a couple of pretty gay-friendly opinions. And a lot of the language in Judge Walker's opinion kind of echoes what Justice Kennedy did in those opinions. And so, if Justice Kennedy is kind of true to what he did before, he will vote with the four liberal justices in this case and affirm this opinion.
BLOCK: Let's talk a bit about Judge Walker. He is a Republican appointee to the federal bench. Opponents of gay marriage are calling him an activist judge. What can you tell us about him?
Prof. LEVINE: Well, you know, when he was first appointed, nobody thought he was going to be an activist judge in the sense of - the way the conservatives mean it. The gay community in San Francisco vehemently opposed him because, very famously, he represented the Olympic Committee in a case that stopped the gay games from calling themselves the Gay Olympics. And so, as a result, the feeling was that he would be anti-gay when he got on the bench, and indeed he's been anything but.
He is certainly - I mean, he's a - I would call him a libertarian Republican. He has not hesitated in some cases to rule in favor of criminal defendants. He certainly has an independent streak about him. And the way he went about handling this case certainly was completely reminiscent of the way in which he tends to run his courtroom.
BLOCK: And he is, according to numerous published reports, himself gay.
Prof. LEVINE: Yes. Certainly, that's common knowledge in San Francisco. It was in the San Francisco Chronicle. And when that came out in the newspaper, all the lawyers in the case, you know, I think it's fair to quote "Seinfeld" and just say, they all thought, not that there's anything wrong with that. The defenders of Proposition 8 certainly could have raised that to the court as a basis for disqualifying Judge Walker, and they just let the issue of his sexuality slide.
I mean, everybody has a sexuality. You have one. I have one. And you have to be able to decide cases.
