A federal court overturned Prop. 8 Tuesday, apparently setting
the stage for the case to move to the Supreme Court. But the judge's
ruling has made some legal analysts think twice about what might
A day after the US Ninth Circuit Court of Appeals overturned
Proposition 8 - California's 2008 voter-approved ban on gay marriage
- the big question is: What happens next?
The Alliance Defense Fund, which helped to defend Prop. 8 in
court, has not divulged its plans, but senior counsel Brian Raum has
said the group expects to make a decision "in due time."
One option is to go back to the Ninth Circuit. Tuesday's ruling
was by a three-judge panel. Prop. 8's legal supporters could ask the
full court of 11 judges to review the case "en banc."
The other option is to appeal the ruling to the US Supreme Court.
For months, legal experts have suggested that the case was almost
certain to end up in the Supreme Court. But Tuesday's decision by
Judge Stephen Reinhardt is now making some analysts think twice.
Some say the issue remains far too weighty for the Supreme Court
to ignore. But others suggest that Judge Reinhardt's opinion might
have been written precisely to try to dissuade the Supreme Court
from overturning it - and it could work.
In short, Reinhardt said the decision to overturn Prop. 8 was not
founded on a fundamental right for gays and lesbians to marry.
Rather, Reinhardt's decision was based on a 1996 Supreme Court
decision, Romer v. Evans, which struck down a Colorado law - passed
by state voters - that prevented local governments from enacting
measures to protect gay and lesbian residents.
The Supreme Court struck down Colorado's Amendment 2 because it
"withdraws from homosexuals, but no others, specific legal
protection," wrote Justice Anthony Kennedy in the majority opinion.
So, reasoned Reinhardt, Prop. 8 also unfairly singles out gays and
It irrationally denies them access to the term "marriage," even
though they already have the legal protections of marriage through
domestic-partnership laws, and it also takes away a legal right they
already had, Reinhardt wrote. (Earlier in 2008, a state Supreme
Court ruling had made gay marriage legal.)
Justice Kennedy is seen as the key swing vote on the US Supreme
Court, and "I think Judge Reinhardt absolutely wrote a narrow
decision as if he were writing a letter directly to Justice
Kennedy," says Jessica Levinson, a professor at Loyola Law School in
Los Angeles. …