What’s next for Proposition 8?
Posted on February 8, 2012
Yesterday, the U.S. 9th Circuit Court of Appeals ruled that California’s ban on same-sex marriage, under the law Proposition 8, was unconstitutional. Proponents of the measure have vowed to appeal to the Supreme Court (though they first need to request the court that issued the decision to reconsider its ruling). But will the Supreme Court accept the case?
On Talking Points Memo, a couple legal experts speculate that it will not:
Several California law professors speculated to Talking Points Memo that this “narrow” focus of the ruling could mean that the Supreme Court will decline to hear the case, since the ruling is so limited to California.
Professor Jane Schacter at Stanford Law School told TPM that “the big question” is whether or not the Supreme Court will agree to hear the case, and though at this point it’s “guesswork,” the narrowness of the opinion makes it less likely that they will. “It’s much more grounded in the specifics of the California ruling,” she said. For one thing, Schacter said, the Ninth Circuit’s opinion emphasizes that the right of same-sex couples to marry had been first granted, then eliminated. For another, unlike most other states, California already essentially granted all of the rights of marriage to same-sex couples, just under a different name than “marriage.” This means that Prop 8 was simply about the designation of same-sex unions as “marriages.”
“Those two things are somewhat peculiar to California,” Schacter said, meaning that the opinion doesn’t necessarily provide the basis for a nationally recognized right for same-sex couples to marry. “Because of that, the Supreme Court may feel the stakes are limited, and it’s not as necessary for them to get involved,” she said.
Even if the Supreme Court does accept the case, how might it rule? On The Huffington Post, Adam Winkler weighs in:
Gay rights lawyers have mixed feelings about an appeal to the Supreme Court. Some were opposed to the Proposition 8 lawsuit from the beginning, fearing what the conservative-leaning Roberts Court might do. In so many cases dealing with high-profile, controversial issues — from affirmative action to the Second Amendment — the Court’s conservative wing has emerged triumphant. If the Court decides against marriage equality in the Proposition 8 case, it will set a precedent that may take decades to undo. Given the evidence of public views moving quickly in the direction of acceptance of LGBT rights, many gay rights activists would prefer to wait a few more years before bringing a marriage equality case to the Supreme Court.
With four Justices expected to vote against gay marriage (Roberts, Thomas, Scalia, Alito) and four others expected to vote in favor (Ginsburg, Breyer, Sotomayor, Kagan), how the Court rules is expected to turn on the vote of Anthony Kennedy, the usual swing vote. And that, perhaps surprisingly, buoys the hopes of many in the gay rights community.
You can read more from the Los Angeles Times here.