Prop. 8 ruling: why it might not go to the Supreme Court

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 lesbians.

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.

By pointing to Romer v. Evans, Professor Levinson says, Reinhardt “made it sound like this decision [on Prop. 8] followed undeniably from some of Kennedy’s own thinking on that case.”

She also notes how Reinhardt steered clear of any implication of a broader right to gay marriage. “We …. need not and do not consider whether same-sex couples have a fundamental right to marry,” the opinion stated.

This makes it less certain that the Supreme Court will act, agrees Kevin Johnson, dean of the law school at the University of California, Davis. “Since the decision is limited in scope, the chances are not as great of the Supreme Court [taking the case] than if the Ninth Circuit had more broadly decided the issue.” 

That said, Professor Johnson says he is somewhat mystified by all the talk about the "narrow" ruling.

"Conservatives often deride judicial activism and overbroad decisions," he says. "Here, the issues before the Ninth Circuit – the California Supreme Court gay marriage decision was overrode by initiative to deny use of the term ‘marriage’ by same sex couples – arguably required narrow resolution.”

"Proponents of Prop. 8 would have complained of judicial activism if Judge Reinhardt had written an expansive opinion," he adds. "In some ways, the Ninth Circuit was in a tough position to please everyone.”

Regardless, the high court justices could still find ample reason to take the case, says Jesse Choper, a constitutional law scholar at Boalt Hall, the University of California at Berkeley School of Law.

“The chances of them taking it are very high,” he says. “The issue is the striking down of a vote by people in the biggest state in the country on a very controversial issue that everyone is watching.”

For his part, Caleb Mason, a professor at Southwestern Law School in Los Angeles, suggests that the ruling's lack of an obvious, immediate impact outside California makes the Supreme Court less likely to take the case. But he's wary of impatient predictions. 

"Any prediction more definite than that is just armchair psychologizing about the justices," he says. "As to why we still have wait, the answer is that the Supreme Court gets the final word on what the Constitution means.”