Until Tuesday, it looked like California's Proposition 8 gay marriage case
would be decided by the U.S. Supreme Court. But that looks less certain now.
If so, that would leave for another day — perhaps several years in the future
— a national ruling on same-sex marriage.
"The opinion holds that Prop. 8 was unconstitutional only in a case where the
state had already granted full legal rights to same-sex couples," said
University of Minnesota law school professor Dale Carpenter.
The decision "is specifically looking at the role of Proposition 8 in the
California context," said Santa Clara University law professor Margaret M.
Russell. Because it is limited to California, the Supreme Court may not be as
concerned about reviewing it as it would a ruling that would have affected the
entire country, she said.
Several state courts have struck down bans on same-sex marriage based on
their state constitutions, but the U.S. Supreme Court has not ruled on whether
such a ban denies gays and lesbians the "equal protection of the laws" under the
14th Amendment.
Indeed, the 9th Circuit's opinion reads as though its intended audience was
one -- Justice Anthony Kennedy -- and its message was that there was no need for
the Supreme Court to decide the California case.
Appeals court judge Stephen Reinhardt, a staunch liberal, did not say gays
and lesbians have an equal right to marry under the Constitution. Instead, he
said California's voters violated the Constitution by "taking away from them
alone" the right they had won to marry under a state Supreme Court decision.
His opinion relies almost entirely on a 1996 opinion written by Justice
Kennedy, the court's crucial swing vote.
That case arose when Colorado's voters adopted a state initiative that voided
a series of local ordinances and state laws that protected gays and lesbians
from discrimination based on sexual orientation. At that time, the high court
had never ruled in favor of gays on a discrimination claim.
But in Romer vs. Evans, Justice Kennedy wrote a strong opinion saying the
Colorado law was unconstitutional because it singled out gays and lesbians for
unfair treatment and took away their hard-won legal rights. Kennedy did not say,
however, that states must adopt gay rights laws.
Reinhardt's opinion repeatedly cites Kennedy's opinion. "Prop. 8 singles out
same-sex couples for unequal treatment by taking away from them alone the right
to marry," he said, including one of many citations to Romer vs. Evans.
The defenders of Prop. 8 have 90 days to appeal this decision directly to the
Supreme Court and ask the justices to review it. But to win, they almost
certainly would need the vote of Justice Kennedy.
The court's four conservatives — Chief Justice John G. Roberts Jr. and
Justices Antonin Scalia, Clarence Thomas and Samuel Alito — could vote to hear
the case. It takes only four votes to hear an appeal. But it takes five to have
a majority.
Douglas NeJaime, a Loyola Law School professor of sexual orientation law,
agreed that the ruling was written for Kennedy, but suggested that if the
Supreme Court did take up the case, Kennedy could side with the four liberal
justices to "find Proposition 8 unconstitutional without having to significantly
expand their jurisprudence" -- meaning that it wouldn't have any effect on other
states' gay marriage bans.
Alliance Defense Fund attorney Brian Raum said the Proposition 8 supporters
hadn't yet decided whether to ask that a full 11-judge panel of the
9th Circuit reconsider the case or take their request for
review and reversal directly to the U.S. Supreme Court.
The justices in Washington accept only about 1% of the cases appealed to them
each year. Analysts were divided over whether the high court would grant review
of the Proposition 8 ruling, with some saying the time is ripe for the justices
to weigh in on whether there is a constitutional right to marry a same-sex
partner and others seeing the 9th Circuit ruling as so narrowly
tailored to the California case as to require no review.