Intervention in Syria will escalate not stop the killing

Seumas Milne

Fighters from the Free Syrian Army, described in the Arab League report as an armed entity, training outside Idlib on 7 February 2012. Photograph: AP

There is no limit, it seems, to the blood price Arabs have to pay for their "spring". After the carnage in Egypt, Yemen, Bahrain and Libya, Syria's 11-month-old uprising grows ever more gruesome. Four days of bombardment of rebel-controlled districts in the Syrian city of Homs have yielded horrific images and reports from the embattled Bab al-Amr opposition stronghold: of mosques full of corpses, streets strewn with body parts, residential areas reduced to rubble.

Television footage broadcast in the Arab world is still more graphic, and the impact convulsive. Whatever the arguments about the number of dead on either side, the scale of human suffering is unmistakable – and comes after almost a year of continuous bloodletting, torture and sectarian revenge attacks.

So when Russia and China vetoed Saturday's western-sponsored UN resolution condemning Bashar al-Assad's regime, requiring his troops to return to barracks and backing an Arab League plan for him to be replaced, US and British leaders and their allies, echoed by the western media, felt able to denounce it as a "disgusting" and "shameful" act of betrayal of Syrians.

But that assumes externally imposed regime change, which is what the resolution entailed, would either work, have legitimacy or actually stop the killing. By decreeing a "political process" with a predetermined outcome, the withdrawal of the Syrian army from the streets with no parallel demand on armed rebel groups, and full implementation within 21 days – with a provision for "further measures" in the event of "non-compliance" – it also paved the way for foreign military intervention.

It's been widely claimed that the double veto has given Assad the green light to intensify repression and made full-scale civil war more likely. But by ruling out UN-backed intervention, it could just as well be argued that it puts pressure on the main opposition group, the western-backed Syrian National Council, to negotiate – given that its whole strategy has been based on creating the conditions for a Libyan-style no-fly zone.

Russia and China have used Syria to challenge the west's attempt to corral the Arab uprisings for its own interests. The veto has strengthened Russia's hand with the Assad regime, while Russian officials have privately assured opposition leaders that the quarrel is with the US, not them. And Barack Obama has now pledged to "try to resolve this without recourse to outside military intervention".

But that's a long way from ruling it out. Already US, British and French leaders are busy setting up a new coalition of the willing with their autocratic Saudi and Gulf allies, satirically named "friends of democratic Syria", to build up the opposition and drive Assad from power.

Intervention is in fact already taking place. The Saudis and Qataris are reported to be funding and arming the opposition. The Free Syrian Army has a safe haven in Turkey. Western special forces are said to be giving military support on the ground. And if that fails, the UN can be bypassed by invoking the "responsibility to protect" civilians, along Libyan lines.

But none of that will stop the killing. It will escalate it. That is the clear lesson of last year's Nato intervention in Libya. When it began, the death toll was 1,000 to 2,000. By the time Muammar Gaddafi was captured and lynched seven months later, it was estimated at more than 10 times that figure. The legacy of foreign intervention in Libya has also been mass ethnic cleansing, torture and detention without trial, continuing armed conflict, and a western-orchestrated administration so unaccountable it resisted revealing its members' names.

Russia and China have now signalled there will be no more UN-sanctioned Libyas. But for the US, Britain and their allies to indulge in moral posturing over Syria or pose as friends of its people is preposterous. It's not just their responsibility for hundreds of thousands of deaths in Iraq and Afghanistan or, say, their support for the Bahrain dictatorship – even as it violently suppresses its own uprising while sponsoring the UN resolution for democratic transition in Syria. For 45 years, they have underwritten Israel's occupation of the Syrian Golan Heights, yet now promise to guarantee Syria's "territorial integrity".

The Syrian crisis operates at several levels. Part of it is a popular uprising against an authoritarian nationalist regime, which still retains significant public support. In the face of sustained repression that uprising has increasingly morphed into what the Arab League mission's leaked report described as an "armed entity".

The conflict has also taken on a grimly sectarian dimension, as the Alawite-dominated security machine trades on minorities' fear of a predominantly majority Sunni opposition. On the ground, that has fed a surge of Iraqi and Lebanese-style confessional cleansing and killings.

But the third dimension – Syria's role as Iran's main strategic ally – is what has made the crisis so toxic in a region where the west and its Arab clients have tried to turn the tide of the Arab awakening to their own advantage by ramping up conflict with Tehran.

The overthrow of the Syrian regime would be a serious blow to Iran's influence in the Middle East. And as the conflict in Syria has escalated, so has the western-Israeli confrontation with Iran. Even as US defence secretary Leon Panetta and national intelligence director James Clapper acknowledged that Iran isn't after all "trying to build a nuclear weapon", Panetta has let it be known there is a "strong likelihood" Israel will attack Iran as early as April, while Iran faces crippling EU oil sanctions over its nuclear programme.

Western intervention in Syria – and Russia and China's opposition to it – can only be understood in that context: as part of a proxy war against Iran, which disastrously threatens to become a direct one. There is little sign, meanwhile, of either the Syrian regime or opposition making a decisive breakthrough.

If the opposition can't shoot its way to power and the regime doesn't implode, the only way out of deepening civil war is a negotiated political settlement leading to genuine elections. To stand any chance of success, that would now need to be guaranteed by the main powers in the region and beyond. The alternative of western and Gulf-dictator intervention could only lead to far greater bloodshed – and deny Syrians control of their own country.

The right's stupidity spreads, enabled by a too-polite left

Conservativism may be the refuge of the dim. But the room for rightwing ideas is made by those too timid to properly object

George Monbiot

A billboard put up by a ‘birther' campaigner convinced that President Obama was not born in the United States. Photograph: Bob Daemmrich/Alamy

Self-deprecating, too liberal for their own good, today's progressives stand back and watch, hands over their mouths, as the social vivisectionists of the right slice up a living society to see if its component parts can survive in isolation. Tied up in knots of reticence and self-doubt, they will not shout stop. Doing so requires an act of interruption, of presumption, for which they no longer possess a vocabulary.

Perhaps it is in the same spirit of liberal constipation that, with the exception of Charlie Brooker, we have been too polite to mention the Canadian study published last month in the journal Psychological Science, which revealed that people with conservative beliefs are likely to be of low intelligence. Paradoxically it was the Daily Mail that brought it to the attention of British readers last week. It feels crude, illiberal to point out that the other side is, on average, more stupid than our own. But this, the study suggests, is not unfounded generalisation but empirical fact.

It is by no means the first such paper. There is plenty of research showing that low general intelligence in childhood predicts greater prejudice towards people of different ethnicity or sexuality in adulthood. Open-mindedness, flexibility, trust in other people: all these require certain cognitive abilities. Understanding and accepting others – particularly "different" others – requires an enhanced capacity for abstract thinking.

But, drawing on a sample size of several thousand, correcting for both education and socioeconomic status, the new study looks embarrassingly robust. Importantly, it shows that prejudice tends not to arise directly from low intelligence but from the conservative ideologies to which people of low intelligence are drawn. Conservative ideology is the "critical pathway" from low intelligence to racism. Those with low cognitive abilities are attracted to "rightwing ideologies that promote coherence and order" and "emphasise the maintenance of the status quo". Even for someone not yet renowned for liberal reticence, this feels hard to write.

This is not to suggest that all conservatives are stupid. There are some very clever people in government, advising politicians, running thinktanks and writing for newspapers, who have acquired power and influence by promoting rightwing ideologies.

But what we now see among their parties – however intelligent their guiding spirits may be – is the abandonment of any pretence of high-minded conservatism. On both sides of the Atlantic, conservative strategists have discovered that there is no pool so shallow that several million people won't drown in it. Whether they are promoting the idea that Barack Obama was not born in the US, that man-made climate change is an eco-fascist-communist-anarchist conspiracy, or that the deficit results from the greed of the poor, they now appeal to the basest, stupidest impulses, and find that it does them no harm in the polls.

Don't take my word for it. Listen to what two former Republican ideologues, David Frum and Mike Lofgren, have been saying. Frum warns that "conservatives have built a whole alternative knowledge system, with its own facts, its own history, its own laws of economics". The result is a "shift to ever more extreme, ever more fantasy-based ideology" which has "ominous real-world consequences for American society".

Lofgren complains that "the crackpot outliers of two decades ago have become the vital centre today". The Republican party, with its "prevailing anti-intellectualism and hostility to science" is appealing to what he calls the "low-information voter", or the "misinformation voter". While most office holders probably don't believe the "reactionary and paranoid claptrap" they peddle, "they cynically feed the worst instincts of their fearful and angry low-information political base".

The madness hasn't gone as far in the UK, but the effects of the Conservative appeal to stupidity are making themselves felt. This week the Guardian reported that recipients of disability benefits, scapegoated by the government as scroungers, blamed for the deficit, now find themselves subject to a new level of hostility and threats from other people.

These are the perfect conditions for a billionaires' feeding frenzy. Any party elected by misinformed, suggestible voters becomes a vehicle for undisclosed interests. A tax break for the 1% is dressed up as freedom for the 99%. The regulation that prevents big banks and corporations exploiting us becomes an assault on the working man and woman. Those of us who discuss man-made climate change are cast as elitists by people who happily embrace the claims of Lord Monckton, Lord Lawson or thinktanks funded by ExxonMobil or the Koch brothers: now the authentic voices of the working class.

But when I survey this wreckage I wonder who the real idiots are. Confronted with mass discontent, the once-progressive major parties, as Thomas Frank laments in his latest book Pity the Billionaire, triangulate and accommodate, hesitate and prevaricate, muzzled by what he calls "terminal niceness". They fail to produce a coherent analysis of what has gone wrong and why, or to make an uncluttered case for social justice, redistribution and regulation. The conceptual stupidities of conservatism are matched by the strategic stupidities of liberalism.

Yes, conservatism thrives on low intelligence and poor information. But the liberals in politics on both sides of the Atlantic continue to back off, yielding to the supremacy of the stupid. It's turkeys all the way down.

As her new film reminds us, Madonna is as unapologetic as ever – and it's doing wonders for the collective female psyche

• • Naomi WolfMonday 6 February 2012 18.30 GMT
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  • Madonna, a picture of military-industrial western masculinity. Photograph: Timothy A Clary/AFP/Getty Images

    If you really want to watch vitriol flow on a monumental scale, be Madonna and dare to make a film.

    It's been instructive to watch the trajectory of Madonna's recent fantasy-biopic of Wallis Simpson, WE, emerge into the critical light of day. A flawed but daring, visually mesmerizing piece, it takes a look at the journeys of two women – Wallis Simpson, re-envisioned by Andrea Riseborough, and a modern Upper East Side abused Stepford wife, Wally ­– as they emerge from victimization to personal autonomy and self-realization.

    Yes, the film is not perfect – it has its historical solecisms, for instance – but it is far from representing the outright crime you would think Madonna had committed, were you a just-landed Martian reading the reviews. The recent Entertainment Weekly notice started: "The movie is a folly, a desultory vanity project for its director and co-writer."

    Others were even more personally brutal. Many of the notices reviewed Madonna herself – with distaste – rather than the film, refusing to engage with it on its merits at all.

    Having had the chance to interview her, I get from the start why one's fallback position can so easily be "hating Madonna". By 10am, the day of our meeting, my daughter had suggested that I change out of my boring trousers into something trendier; my partner, once I was in a dress, suggested film people were more casual; and my mom, who hadn't worried about this stuff since I was 14, called to remind me to brush the back of my hair.

    Before I had even left the house, I looked hopelessly uncool.

    Since Madonna is positioned as always "cooler than thou", we all are primed for schadenfreude if something in her fabulous life goes amiss. But I found when I met her that I respected her – and I respect her film.

    Is Madonna a self-absorbed megalomaniac with a touch of the arriviste? Probably; but so are dozens of equally brilliant male artists in other mediums, whose imperfect but worthwhile new efforts are treated with hushed awe (see the reverence accorded the solemn and often tedious Tom Ford film, A Single Man). The reliable media theme of "Hating Madonna", whenever she steps out of her pretty-girl-pop-music bandwidth, is so consistent that it deserves scrutiny in its own right.

    Why can the press just not wait to hate Madonna at these moments?

    Because she must be punished, for the same reason that every woman who steps out of line must be punished. Madonna is infuriating to the mainstream commentariat when she dares to extend her range because she is acting in the same way a serious, important male artist acts. (And seizing the director's chair, that icon of phallic assertiveness, is provocative as hell.) She is taking for granted that she is allowed to stretch. This is intolerable, because Madonna has not done the sorts of things that allow women of immense talent to get "permission" or "to be liked".

    What is so maddening? She does what every serious male artists does. That is: she doesn't apologize for her talent or for her influence. What comes across quite profoundly when one interviews her is that she is preoccupied with her work and her gifts – just as serious male artists are, who often seem self-absorbed. She has the egoless honesty of the serious artist that reads like ego, especially in women.

    Madonna is that forbidden thing, the Nietzschean creative woman.

    Her preoccupation with a high level of work doesn't allow her to follow the usual script that powerful women are expected to follow – "don't hate me for my success, don't hate me for my power". She doesn't pretend to the press that she thinks she is not talented, or suggest that she happened to make high-level art for decades unconsciously, or by accident, or in her sleep.

    She doesn't parade her vulnerabilities; she does not play the victim. She is not continually letting us in to the details of some battle with bulimia or weight problems or health problems or drug abuse, or the way her heart always seems to get broken (fill in likeable talented/wealthy/successful actress, musician, etc here). Nor does she complain about how hard it is to juggle work and family, or let us into photo shoots where we see the banal and recognizable rituals of grocery shopping or ferrying kids, so that we can know reassuringly that she is JUST LIKE US (fill in likeable female politician/news anchor here).

    If she did engage in those ritual forms of self-abnegation that influential women are encouraged to spin to soft pedal their power in our media culture, we would "like her more". But she would be far less important – both as an artist, and to the collective female psyche.

    Many of us love the fact that Madonna does not apologize for her Nietzschean self or her appetites – that she wraps herself in glamor, not mom jeans, and that she glams up intentionally as she gets older. (I loved the fact that when I entered her astonishingly opulent home – or set of homes, all connected behind a high iron wall – the place was populated with discreet, stunningly handsome young male staffers, from all backgrounds – from the gorgeous chauffeur to the gorgeous security guard to the gorgeous fellow who brought in the sparkling water).
    
    Even her movie, WE, does not apologize for female centrality the way most works of art by women still feel they must do: she places Wallis and Wally's journeys right at the center of the narrative. The men are peripheral, sometimes two-dimensional images (The Abuser, The Great Lover) but this works in the story just the way that female Muse figures, or Whores with Hearts of Gold, often work in films about male self-realization. Even the really erotic love scenes are shot from the female heterosexual perspective. The Lover is lit and his body panned in the same delectable aesthetic that male heterosexual directors always use on the female body. I mean, how dare she?
    
    Last night, at half-time during the Super Bowl – that military-industrial complex factory of western masculinity, in which beefed-up men were pounding the stuffing out of each other, in between shots of the troops in Afghanistan – Madonna was marched on stage by a glistening gladiator muscle-troupe and flipped the flowing cape of LMFAO's RedFoo. Madonna was invited to perform at the Super Bowl — and ended up satirizing the Super Bowl. The girl can't help herself, and thank God for that.
    
    So Madonna's refusal to be less powerful, less entitled, less desiring and less not-ordinary, is always going to bring out the haters, whether she is playing with sacred iconography or just pissing people off. But I would say that this ongoing hostility is just the proof she should need that she is doing her proper job in the collective female psyche.

    • Naomi Wolf will be online on Friday to discuss this article and answer readers' questions. Details will be posted nearer the time.

The contraceptive implant 'controversy' is just mud flinging

In decrying a safe and effective treatment, the anti-choice lobby is again undermining sexual healthcare for young people

Young people are still deprived of good quality, accurate information about sexual health at school.' Photograph: Britstock Images/Alamy

"The strategy of the United States' anti-contraception, anti-choice lobby is to keep flinging mud until some sticks, draining healthcare professionals and advocates of time and energy by inventing battles that need to be fought and throwing up misinformation that needs to be corrected."

These were words of warning from a colleague at a meeting just yesterday. She could have been talking about Nadine Dorries MP, who within the past six months has tried to remove pregnancy choices counselling from the Department of Health-regulated Pregnancy Advice Bureaux, and tried to make schools teach young women sexual abstinence. Today, Dorries writes in the Daily Express expressing outrage about tried-and-tested health policy and practice – the provision of contraception to young women under 16. This stuff is straight out of Tea Party activism 101.

The right to information, advice and contraceptive provision for under-16s has been well established since 1985, when Victoria Gillick famously failed to stop doctors prescribing the pill to young women without parental consent. Since then, doctors have been required to assess their patients' ability to consent to treatment, and to explore with young patients the benefits of talking to their parents or carers.

This is something that the 4,000 professionals we have trained around England take very seriously. Everyone's ideal scenario is that young people and their parents have the kind of relationships in which they can discuss these issues openly and safely. For those who can't, most parents would rather their children did have the option of talking to a trained health professional than the alternative – which is no information or advice, no contraception and the risk of unintended pregnancy.

The contraceptive implant, on which the latest "controversy" is focused, is one of four long-acting reversible contraceptive methods available to women (including teenagers) in England and Wales. There has been a drive to make these methods more widely available because they are so extraordinarily effective at preventing pregnancy. There are undoubted benefits to being able to access methods that are non-user-dependent, but they are not a panacea.

There are, of course, side-effects that women need to be well-informed about before choosing a contraceptive method, and the National Institute for Health and Clinical Excellence (Nice) makes this very clear in its guidelines. Each woman will feel differently about a given contraceptive method and the procedure needed to fit it. There are no quick fixes, and good quality contraceptive counselling – which addresses a woman's needs, her lifestyle, the acceptability or otherwise of different side effects, and ways to minimise side effects – is absolutely vital.

If there is any controversy, it should be about why, 50 years after the invention of the pill, we still haven't found the pot of gold at the end of the rainbow – the perfect 100% reliable, side-effect-free contraceptive method. Or why young people are still deprived at school of good quality, accurate information and education, about sexual health and relationships. Or why parents and children in this country are so ill-equipped to discuss these things with each other.

However, I don't think the inventors of today's brouhaha really care about any of that. This is just mud-flinging plain and simple. Today's salvo is probably the first in a new campaign against young people's right to confidential advice and treatment. Tomorrow there will be another baseless scare story about the pill – which will see abortion rates spike as women abandon a trusted contraceptive method. The next day there will be a moral panic about a classroom resource which depicts two women holding hands, and the next a call to censor The Muppet Show for its sexual licentiousness ... and so our energy is diverted from our actual work with actual young people providing evidence-based education and good quality healthcare.

Astroturfing: what is it and why does it matter?

Creating the illusion of widespread support for a policy used to take place in papers – now it's online and even more powerful

Astroturfing is the attempt to create an impression of widespread support where little exists. Photograph: AP

Claims that a pro-Kremlin group funded a vast network of online activists to create the illusion of widespread support for Vladimir Putin may seem like a bizarre tale restricted to an authoritarian state. However the use of so-called "astroturf" groups is widespread across all nations and walks of life, from China to Britain, from book reviews to online surveys, and from big business to local politics.

What is astroturfing?

Astroturfing is the attempt to create an impression of widespread grassroots support for a policy, individual, or product, where little such support exists. Multiple online identities and fake pressure groups are used to mislead the public into believing that the position of the astroturfer is the commonly held view.

Although usually associated with the internet, the practice has been widespread ever since newspaper editors first invented the letters page. Pick up any local paper around the time of an election and you will find multiple letters from "concerned residents of X" objecting to the disastrous policies of Y. Similarly, concerned residents often turn up on talk radio shows and even in campaign literature, although the latter can prove more dangerous, as Labour party activists posing as residents in Greenwich discovered a few years back.

To overcome these dangers, most astroturfing now takes place on the forums and comment sections of blogs and newspaper websites. Here, individual astroturfers can leave comments under numerous identities with little fear of discovery. Discovery does occur, however, and in 2008 one member of Boris Johnson's campaign team was caught posting comments on blogs critical of his boss without sufficiently concealing their identity. A few years later, another member of Johnson's campaign was found posing as a concerned Labour supporter trying to prevent Ken Livingstone from being the party's candidate for mayor.

What are the latest astroturfing trends?

None of these British examples comes close to the sort of operation seen in Russia. New forms of software enable any organisation with the funds and the know-how to conduct astroturfing on a far bigger scale than even the Kremlin could hope for. As reported by the Guardian, some big companies now use sophisticated "persona management software" to create armies of virtual astroturfers, complete with fake IP addresses, non-political interests and online histories. Authentic-looking profiles are generated automatically and developed for months or years before being brought into use for a political or corporate campaign. As the software improves, these astroturf armies will become increasingly difficult to spot, and the future of open debate online could become increasingly perilous.

Why is this happening?

The development of these new astroturf tools is both a response and a result of the openness inherent online. Twitter and blogging have given a voice to millions and allowed genuine opposition movements to take their case to the masses. Censorship of these movements has not always proved effective, with only authoritarian governments possessing the means and the will to implement it. For big business and less repressive governments, the alternative of simply crowding out your opposition online must seem a far more attractive prospect.

With a few computers and a handful of operatives, whole legions of supporters can be magicked out of thin air, and at a potentially lower cost than the "hundreds of thousands" allegedly spent in Russia. How widespread these practices are is anyone's guess, but as the size and influence of online debate increases, the demand for such astroturf services will only increase, too.

Astroturfing: what is it and why does it matter?

Creating the illusion of widespread support for a policy used to take place in papers – now it's online and even more powerful

Astroturfing is the attempt to create an impression of widespread support where little exists. Photograph: AP

Claims that a pro-Kremlin group funded a vast network of online activists to create the illusion of widespread support for Vladimir Putin may seem like a bizarre tale restricted to an authoritarian state. However the use of so-called "astroturf" groups is widespread across all nations and walks of life, from China to Britain, from book reviews to online surveys, and from big business to local politics.

What is astroturfing?

Astroturfing is the attempt to create an impression of widespread grassroots support for a policy, individual, or product, where little such support exists. Multiple online identities and fake pressure groups are used to mislead the public into believing that the position of the astroturfer is the commonly held view.

Although usually associated with the internet, the practice has been widespread ever since newspaper editors first invented the letters page. Pick up any local paper around the time of an election and you will find multiple letters from "concerned residents of X" objecting to the disastrous policies of Y. Similarly, concerned residents often turn up on talk radio shows and even in campaign literature, although the latter can prove more dangerous, as Labour party activists posing as residents in Greenwich discovered a few years back.

To overcome these dangers, most astroturfing now takes place on the forums and comment sections of blogs and newspaper websites. Here, individual astroturfers can leave comments under numerous identities with little fear of discovery. Discovery does occur, however, and in 2008 one member of Boris Johnson's campaign team was caught posting comments on blogs critical of his boss without sufficiently concealing their identity. A few years later, another member of Johnson's campaign was found posing as a concerned Labour supporter trying to prevent Ken Livingstone from being the party's candidate for mayor.

What are the latest astroturfing trends?

None of these British examples comes close to the sort of operation seen in Russia. New forms of software enable any organisation with the funds and the know-how to conduct astroturfing on a far bigger scale than even the Kremlin could hope for. As reported by the Guardian, some big companies now use sophisticated "persona management software" to create armies of virtual astroturfers, complete with fake IP addresses, non-political interests and online histories. Authentic-looking profiles are generated automatically and developed for months or years before being brought into use for a political or corporate campaign. As the software improves, these astroturf armies will become increasingly difficult to spot, and the future of open debate online could become increasingly perilous.

Why is this happening?

The development of these new astroturf tools is both a response and a result of the openness inherent online. Twitter and blogging have given a voice to millions and allowed genuine opposition movements to take their case to the masses. Censorship of these movements has not always proved effective, with only authoritarian governments possessing the means and the will to implement it. For big business and less repressive governments, the alternative of simply crowding out your opposition online must seem a far more attractive prospect.

With a few computers and a handful of operatives, whole legions of supporters can be magicked out of thin air, and at a potentially lower cost than the "hundreds of thousands" allegedly spent in Russia. How widespread these practices are is anyone's guess, but as the size and influence of online debate increases, the demand for such astroturf services will only increase, too.

How a conservative-leaning supreme court may yet rule for gay marriage

Judge Reinhardt's ruling on Proposition 8 is carefully crafted to win the casting vote of supreme court Justice Anthony Kennedy

The US supreme court justices. The vote of Anthony Kennedy (front row, far left) is expected to be decisive when the court is called to rule on the constitutionality of California's Proposition 8 ban on same-sex marriage. Photograph: Mandel Ngan/AFP/Getty Images

The ninth circuit court of appeal's ruling in Perry v Brown (pdf) that California's infamous Proposition 8 unconstitutional is certainly good news. The court's finding that the ban on same-sex marriage enacted by California's voters violates the equal protection clause of the 14th amendment has major potential implications.

Given the importance of the case and the rights and stake, the majority opinion by the liberal lion Judge Stephen Reinhardt might seem surprisingly narrow and cautiously argued. But this reflects the most important audience for Reinhardt's opinion: Justice Anthony Kennedy. Should the supreme court overrule the ninth circuit, the victory won in the lower courts would be not merely hollow, but actively counterproductive. Reinhardt's opinion seems written to maximize the chances that it will be upheld by the supreme court – and he might well succeed.

Given the near-certain votes of Justices Scalia, Thomas, Alito and Chief Justice Roberts to uphold Proposition 8, as with so many others, this case is likely to come down to Justice Kennedy's vote. And while generally Kennedy is an ally of the aforementioned group of conservative Republican appointees, on issues pertaining to gay and lesbian rights, there is some reason for optimism.

When he was nominated for the supreme court by Ronald Reagan, after the Senate rejected Robert Bork, some conservatives objected to Kennedy based on his perceived sympathy to civil rights for gays and lesbians. These objections, fortunately for the country, were well-founded. In Lawrence v Texas, Kennedy authored the opinion for the court overruling the infamous Bowers v Hardwick, which had upheld a Georgia law banning "sodomy" in language rife with contempt for gays and lesbians and their rights. And even before Bowers had been overruled, Kennedy's opinion in Romer v Evans struck down a Colorado initiative that prevented any state institution or agency from providing civil rights protection to gays and lesbians.

Shrewdly, Reinhardt's opinion repeatedly cites Romer and argues that the case presents similar constitutional questions. "Proposition 8," argues Reinhardt, "is remarkably similar to amendment 2" (the Colorado initiative Kennedy held unconstitutional). Kennedy had argued in Romer that amendment 2 was constitutionally invalid because it "withdraws from homosexuals, but no others, specific legal protection". Proposition 8, Reinhardt notes, has the same key characteristic, singling out gays and lesbians for a particular legal disadvantage.

In particular, Reinhardt focuses on two key elements of Proposition 8: the fact that an existing right was taken away, and the fact that same-sex partnerships were legally identical to opposite-sex ones, except that the nomenclature of "marriage" could not be applied to the former. Both of these facts make Proposition 8 analogous to the invidious, irrational discrimination Kennedy held to be unconstitutional in Romer. Denying the term "marriage" to otherwise legally equivalent partnerships can only be justified in order to stigmatize the same-sex relationships. This cannot be consistent with the equal protection of the laws, and the fact that a right was taken away aggravates the effects of the discrimination.

And the fact that only the name "marriage" was denied to same-sex partnerships does not make the exclusion trivial. The term has unique connotations and meaning, and denying it to some citizens in otherwise equal relationships represents the kind of exclusion the 14th amendment was designed to prohibit.

In addition to citing Kennedy's landmark opinion repeatedly, Reinhardt's repeated citing of Romer demonstrates that the court can hold Proposition 8 unconstitutional without radically changing equal protection law. The California initiative, Reinhardt correctly notes, "has no apparent purpose but to impose on gays and lesbians … a majority's private disapproval of them and their relationships." This kind of animus cannot be said to be rationally related to any legitimate state interest. Hence, Proposition 8 is invalid even if one assumes (as the supreme court currently does) that classifications do not require "strict scrutiny" in the way that classifications based on race do. Particularly on such highly visible issues, the court is always more likely to favor a right if it is not required to create new doctrine to do so.

Admittedly, Reinhardt's argument against Proposition 8's constitutionality is not without its downsides. Because of the narrow focus on the specific facts of the California case, if the supreme court were to adopt the reasoning of the ninth circuit, the national implications of the ruling would be unclear. It's likely that lower courts would not immediately interpret such a holding as creating a right to same-sex marriage.

Reinhardt's logic, if the supreme court agrees, might restore same-sex marriage rights in Maine – where they were also taken away by an initiative – but lower courts may be reluctant to apply the right to different contexts. A ruling holding that classifications based on sexual orientation should be subject to strict scrutiny, and that the denial of the fundamental right to marriage cannot possibly survive such scrutiny, would be preferable and more consistent with the values of the US constitution – if it were possible.

Still, Reinhardt's decision to go for a solid base hit rather than a home run represents a sound instinct. Kennedy is much more likely to uphold the ninth circuit if he believes such a ruling to be consistent with his own precedents. Forced to choose between a broad, immediate national right to same-sex marriage and upholding Proposition 8, Kennedy is quite likely to choose the latter. Creating a Bowers-like bad precedent would be a disaster, making it much more difficult to successfully litigate in the future – and also, possibly, allowing states to impose more disabilities on same-sex partnerships.

A ruling that immediately gave California's 37 million residents the right to same-sex marriage and creates a precedent that would likely expand that right to many other, if not all states in the future would still be a major victory. We have to hope that Judge Reinhardt has read Justice Kennedy correctly.