After Prop. 8 Ruling, Looking Ahead to the Supreme Court

The road ahead for same-sex marriage

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Now that federal District Court Judge Vaughn Walker in California has overturned Proposition 8, which banned gay marriage in the state, many figures on both sides of the issue are looking forward. Observers are considering the possibility of an appeal, ultimately to the Supreme Court, to be very likely. Here's what a Supreme Court case on Proposition 8 is likely to look like.

  • Supreme Court Case Inevitable  The Washington Post's Robert Barnes and Sandhya Somashekhar write, "The decision is the first step in a legal struggle that is widely expected to end at the Supreme Court. ... The U.S. Supreme Court has never directly addressed the question of same-sex marriage, and most think that the case is headed there after it is appealed to the U.S. Court of Appeals for the 9th Circuit."
  • The Long Path to SCOTUS  Salon's Linda Hirshman maps it out. "The walk down the aisle to constitutionally protected same-sex marriage has many steps to go. Opponents of gay marriage are already on their way to the United States Court of Appeals for the 9th Circuit to reverse Walker's decision. Three appeals judges will hear it next, and the loser after that will surely ask for an 11-judge panel to rehear it -- and there’s even a procedure for all 28 of the 9th Circuit's judges to give it another swipe. And all of this will come before the real show in the United States Supreme Court."
  • Ruling Aimed Squarely at Justice Kennedy  Slate's Dahlia Lithwick reads a direct appeal to Justice Anthony Kennedy, the so-called "swing vote" on the Supreme Court. "I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). ... Walker trod heavily on the path Kennedy has blazed on gay rights."
  • Did Walker Take Wrong Approach?  Mother Jones' Kevin Drum shrugs, "Personally, I would have preferred an opinion that was based a little less on a mountain of science and methodology and a little more on a mountain of compelling legal doctrine, since that's what's going to matter when this case gets to the Supreme Court."
  • 13 Findings That Will Play a Role  The Atlantic's Marc Ambinder lists the 13 facts that Judge Walker finds in his ruling. "Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come." Here are the first three:
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.
3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.
  • Risks Broad Precedent--Maybe Too Broad  Conservative law blogger Dale Carpenter warns, "In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. ... If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand."
This article is from the archive of our partner The Wire.