There was outrage and celebration in California this month when a federal judge overturned the state’s voter-approved ban on same-sex marriage. But as the case is appealed, first to the 9th U.S. Circuit Court of Appeals, and then, almost inevitably, to the U.S. Supreme Court, there’s a strong likelihood that higher court rulings could affect other states’ prohibitions.
Nevada voters in 2000 and 2002 voted to change the state constitution to define marriage as between a man and a woman.
That represents the argument that the state’s top attorney should defend the state’s constitution.
But on the other side are those who say California’s Proposition 8 and bans such as Nevada’s, violate the U.S. Constitution’s guarantee of equal protection under the law.
Lee Rowland, northern coordinator of the American Civil Liberties Union of Nevada, noted that elected officials have to uphold both the state and federal constitutions.
“Sometimes they conflict,” she said.
In this case, the ACLU says the federal constitution should trump the provision passed by Nevada voters.
“The purpose of the constitution is to protect unpopular minorities from having their rights taken away by a popular vote,” Rowland said. “That’s precisely what the Proposition 8 decision did.”
Right now, marriage equality is on hold in California pending decision(s) from The Ninth Circuit Court of Appeals. However if The Ninth and The Supreme Court ultimately agree with Judge Walker's decision, marriage equality returns for good to California...
But that may not be all. Depending on how far-reaching the final decision, all state marriage bans may be found in violation of the 14th Amendment, and more specifically the equal protection clause and the due process clause. If this happens, then Question 2 is gone immediately.
However even if the higher courts just narrowly apply the 14th Amendment to strike down just Prop H8 in California in this case, it still puts Question 2 into major jeopardy here. After all, we're no longer just dealing with California or Nevada state law. Remember that federal constitutional law trumps it all, so any final decision striking down Prop H8 on federal constitutional grounds at the very least sets strong precedent for a future federal legal challenge to Question 2 here in Nevada, as well as all other state marriage bans.
So now, we wait for The Ninth... Then it's on to The Supremes. And as long as Judge Walker's ruling stands, there's good reason to hope for full equality to come here in our lifetime.