General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsHere's what happens NEXT on Proposition 8.
There are pretty much four potential courses of events now with regards to Prop 8.
1. If there is no appeal to the Supreme Court, then the 9th Circuit ruling stands as precedent, and effectively provides the grounds to require legalized gay marriage within any of the states covered by the 9th Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. This will likely require individual suits brought in each state against that specific state's laws.
2. If the case is appealed to the Supreme Court and they refuse to hear the case, it is effectively the same as option one.
3. If the Supreme Court hears the case, and upholds the rulings of both the 9th Circuit and the lower court, then it would create a national precedent, equivalent to when the court struck down sodomy laws in Lawrence vs. Texas.
4. If the Supreme Court hears the case, and overturns both lower rulings, it would allow Prop 8 to stand in California.
jeff47
(26,549 posts)This decision was by a 3-member panel from the 9th Circuit. The next step in the appeals process would be before the full 9th Circuit. Then it would go on to the SCOTUS.
hifiguy
(33,688 posts)(all the judges of the court) or for a rehearing will be the next step. The likelihood that the 9th Cir would grant such a petition are two and Slim just left town.
TheWraith
(24,331 posts)...that this will not be the final decision by the 9th Circuit. It's overwhelmingly likely that either the full court will take a pass, or they'll back up the 3 member panel.
msongs
(67,406 posts)Maven
(10,533 posts)"If there is no appeal to the Supreme Court, then the 9th Circuit ruling stands as precedent, and effectively provides the grounds to require legalized gay marriage within any of the states covered by the 9th Circuit..."
This is not really true. If you read the decision, the 9th Circuit specifically declines to address the question of whether denying same-sex couples the right to marry as a general proposition violates the federal Constitution.
From the decision:
In other words, since California already gave same-sex couples all of the incidents of marriage through its domestic partnership laws, including the right to adopt children, the court concluded that taking away only the designation of 'marriage' could not have served any legitimate state interest other than to denigrate a minority of citizens, since the state's interest in childrearing or any of the other interests the proponents of Prop 8 often cite to justify their bigotry could not have been affected:
SO, TO SUMMARIZE
What the 9th Circuit's decision DID do:
- It DID hold that Prop 8 was unconstitutional, because same-sex couples in California already had the same rights as opposite-sex couples, and therefore stripping the designation of 'marriage' from same-sex couples could only have been to discriminate and for no other reason. This is the only holding, in this specific set of circumstances, that would be BINDING on other jurisdictions provided the Supreme Court did not overturn this decision.
- It DID, more generally, talk about equality for gays and lesbians in positive terms. This could be used as PERSUASIVE, but not binding, authority for subsequent decisions by other courts.
What the 9th Circuit's decision DID NOT do:
- It DID NOT hold that denying same-sex couples the right to marry, as a general proposition, is unconstitutional.
- It DID NOT hold that laws discriminating on the basis of sexual orientation should be evaluated by the courts according to the stricter 'intermediate scrutiny' or 'strict scrutiny' standards which are applied to laws that discriminate on the basis of gender or race. (Notice the use of 'legitimate reason' in the block quote above. They are still applying the lowest-level 'rational basis' standard to this category of discrimination.)
NOW, THAT SAID.
I happen to think that this is a very specific STRATEGY on the part of the 9th Circuit panel. As much as they might like to address the broader questions of whether same-sex marriage is constitutionally guaranteed, or whether statutory discrimination against gays should be subject to the same test as gender or race, they know what is coming next: a Supreme Court decision with very shaky support, at best, for the good guys. So in order to make their decision as Scalia-proof as they could, they kept the decision as narrow as possible for two reasons: 1) they do not want the decision overturned on the basis that the 9th Circuit overstepped its mandate to decide this particular question; and 2) they do not want a potentially unfriendly SCOTUS to have an excuse to weigh in on the broader issue of whether gay marriage bans are generally constitutional.
Now - the Supreme Court can elect to decide this case on different grounds. They might elect to address the broader question. (Part of me agrees with the 9th Circuit's thinking - let's hope the Roberts Court stays far away.) But this particular decision would not be a Constitutional endorsement of same-sex marriage rights were it affirmed by the Supreme Court in its current form. As I've explained above, I believe that is by design.