Prop 8 Decision Paves Way for High Court Ruling

By Cliff Dunn

On Tuesday, the U.S. 9th Circuit Court of Appeals in San Francisco ruled to deny an appeal of a February lower court decision against California’s Proposition 8. The appeals court’s ruling paves the way for the U.S. Supreme Court to decide the fate of marriage equality by next year.

The 9th Circuit decision means the U.S. Supreme Court is likely to have two major gay-rights cases on its docket in the near future. The ruling comes less than a week after a federal appeals court in Boston ruled that the Defense of Marriage Act (DOMA)—the federal law that declares marriage to be solely between a man and a woman—discriminates against married same-sex couples, by denying them the same benefits granted under the law to heterosexual couples.

As in the California appeals court ruling, the Massachusetts judges chose narrow ground to assert that the law singles out gay couples for discrimination, in ways that violate their Constitutional rights to equal protection.

Neither federal panel took the step of declaring that the Constitution supports the right to same sex marriage.

Tuesday’s case concerns the statewide referendum passed by California voters in 2008 that placed a prohibition in the state constitution recognizing same sex marriages. In their 2-to-1 decision that struck down Proposition 8, the appeals court judges said, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.” The ban had reinstated a previous one against same-sex nuptials, just six months after the California Supreme Court struck it down as unconstitutional.

After the ballot measure amended the state constitution, two same sex couples sued in federal court, arguing that Proposition 8 violates the U.S. Constitution.

After the three-judge panel ruled in February that the ban violates federal constitutional guarantees—but limited the ruling’s effects to within California—sponsors of Proposition 8 asked the 9th Circuit to assemble an 11-judge panel to reconsider the case. A majority of the circuit’s judges voted against such a rehearing.

Although many believe that the U.S. Supreme Court will decide to hear one or both of these cases, the justices are not obligated to do so. Experts say that the nine-member high court is divided 4-to-4 on the question of marriage equality, with Justice Anthony Kennedy widely considered being the deciding vote. Both the California and Massachusetts federal appeals court rulings referred at several points to decisions by Justice Kennedy to legally justify the basis for their reasoning.