The Ninth Circuit on Tuesday declined to reexamine a ruling
overturning California's Prop. 8 gay marriage ban as
unconstitutional. The decision sets the stage for a Supreme Court
An escalating showdown over gay rights in America appears to be
heading inevitably to the US Supreme Court.
Two major appeals court cases dealing with same-sex marriage are
poised for possible review at the nation's highest court - perhaps
with decisions as early as next year.
A federal appeals court in San Francisco announced on Tuesday
that it would not examine a February decision striking down as
unconstitutional California's Proposition 8 ballot initiative, which
effectively banned same-sex marriages in the state.
The action clears the way for lawyers to file an immediate appeal
to the Supreme Court.
In addition, last week an appeals court in Boston struck down the
federal Defense of Marriage Act, saying it violated the equal
protection rights of same-sex married couples in Massachusetts.
Lawyers in that case have not yet announced whether they will
seek further review at the appeals court in Boston or appeal
directly to the Supreme Court in Washington.
The legal action comes a few weeks after President Obama
announced his support for same-sex marriage. It also comes as public
opinion polls show the nation divided over the issue, but with
gradual increasing acceptance of the practice.
Eight states plus the District of Columbia recognize same-sex
marriages. At least 28 states have constitutional amendments
restricting marriage to a union between one man and one woman.
Legal analysts are divided over how likely the high court is to
take up the gay rights cases. If the high court does enter the fray,
scholars say the key vote may reside with Justice Anthony Kennedy.
Justice Kennedy is considered a swing voter on certain issues,
and his swing vote proved important in two key gay rights decisions,
the 1996 case Romer v. Evans, and the 2003 case Lawrence v. Texas.
Kennedy wrote the majority opinion in both cases. Romer
invalidated a Colorado effort to eliminate and ban special legal
protections enacted for the gay community.
Appeals court judges in both the California and Massachusetts
cases used Kennedy's Romer decision and its equal protection
approach as the supporting structure for their analyses.
While Kennedy has not shied away from expanding gay rights in
past cases, it remains unclear whether he is prepared to embrace
For example, in the 2003 Lawrence case, Kennedy added an
important limitation on the scope of his ruling. "The present case,"
he wrote, "does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to
Ninth Circuit case
In the California case, lawyers supporting the 2008 ballot
initiative had asked the Ninth Circuit Court of Appeals to examine
whether a federal judge and a divided three-judge Ninth Circuit
panel were correct when they ruled that the ballot measure violated
provisions of the US Constitution.
In its order released on Tuesday, the appeals court said that a
majority of active judges voted not to re-hear the case.
The action lets the earlier panel's ruling stand. The court said
the ban on gay marriage would remain in place in California for 90
days pending the filing of an appeal with the Supreme Court.
The court added that the ban would continue until the appeal was
dismissed or decided by the high court. …