Tuesday, June 5, 2012

Supreme Shift for Marriage Equality

It's happening. It's finally happening. California's landmark Prop 8 case is heading to the US Supreme Court.

The U.S. 9th Circuit Court of Appeals' decision to deny an appeal of February's ruling against Proposition 8 paves the way for a U.S. Supreme Court decision on gay marriage by next year.

The decision means the U.S. Supreme Court is likely to have two major gay-rights cases on its docket in the near future. Another federal appeals court last week struck down a federal law that denied federal recognition to same-sex marriage.

Backers of Proposition 8 said they will ask the U.S. Supreme Court to review the 9th Circuit ruling. [...]

A majority of the circuit's active judges voted against such reconsideration. [...]

Judges Stephen Reinhardt and Michael Daly Hawkins, who voted in February to overturn Proposition 8, responded in a concurring opinion that their ruling was narrow.

"We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage.

"That question may be decided in the near future, but if so, it should be in some other case, at some other time."

So what happens next? I'll let the experts at Courage Campaign's Prop 8 Trial Tracker explain.

Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013. [...]

No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.

Remember that since the Ninth Circuit's ruling on Perry v. Brown (the Prop 8 case) was narrowly tailored to just the (mis)use of the initiative process to deny the already granted right of civil marriage equality in California, The Supremes may actually decide that this case is not worth their time. However since this case is already in federal courts and addressing federal Constitutional issues, they may yet take the case. They may particularly want to take the case if they're out to broaden the scope again and make a ruling applicable nationwide, so now the final fate of the Perry case rests on how "activist" the Supreme Court Justices are feeling this fall.

At the very least, the early signs look good for Nevada's own Sevcik v. Sandoval marriage equality law suit. After all, Lambda Legal is also presenting a narrowly tailored case in arguing how forcing LGBTQ families to take domestic partnerships instead of civil marriages does not provide equal protection under the law. While Nevada's case is different from California's in that we never had any time period of marriage equality to start with, the same logic that most Ninth Circuit Justices used in their Perry ruling can also be applied to Sevcik.

So we can at least celebrate some good news on the equality front in the Ninth. However, we'll have to wait until the fall to see if the nation's highest court is ready to make some broad strokes that could affect LGBTQ equality nationwide.

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