August 4th, 2010
05:10 PM ET
12 years ago

Proposition 8: Long road to the Supreme Court

Washington (CNN) - A federal judge in California ruled Wednesday that Proposition 8 - California's voter-approved ban on same-sex marriage - is unconstitutional.

Q: What happens next?

A: The losing side is hoping the judge immediately issues a stay to stop the ruling from going into effect until appeals are filed. Supporters of the voter-approved referendum in particular were concerned that if they lost, same-sex marriages could be performed before the judge rules on the stay request, which could take several weeks.

The next step will be for the losing side to file a "merits" appeal with the 9th Circuit U.S. Court of Appeals in San Francisco, asking it to essentially decide whether the judge's ruling was proper. Both those for and those against Prop 8 will probably ask this court to fast-track the case, that it be heard on an expedited basis.

Lawyers will argue on the larger legal questions in front of the three judges on the court, and then a written ruling will be issued. The losing side at this stage can ask an "en banc" panel of 11 judges from the court to hear the case.

The appeals court has no deadline in which to decide the constitutional questions, so the waiting game could drag on for many months.

Q: What will be argued?

A: This is a federal appeal over the impact created by a state referendum.

At issue is whether it violates the 14th Amendment's guarantee of "equal protection" and "due process." Such individual protections have often been used in cases of civil rights, such as school desegregation and voting.

Those against Prop 8 will say that marriage is a fundamental state-sanctioned right and that same-sex couples are being discriminated against when laws deny them that right. Prop 8 proponents have said that state legislatures and voters have the right to amend a state constitution on defining marriage and that their wishes must be respected by the federal courts.

Q: How does it get to the Supreme Court?

A: After the 9th Circuit court rules, lawyers have the option of asking the Supreme Court to intervene, likely the next step instead of the larger "en banc" panel.

The nine justices on the Supreme Court, unlike lower courts, have the discretion to deny hearing the case. In fact, only about 1 percent of petitions for certiorari - which this appeal is labeled - are accepted by the court for argument.

If the case is accepted, as would be expected, both sides will file a series of written briefs, oral arguments would be held, and then a written ruling is issued. The high court usually releases its rulings by June of the annual term that begins in October, within a few months at most of hearing a case.

Q: How long will it take to get there, given that this is a landmark case?

A: Depending on how long it takes the appeals court to decide how quickly to hear the case and then to decide the constitutional questions, it could be a year or two before the case reaches the Supreme Court.

Q: How might some justices look at the case?

A: A key question for the court will be how it views - or how it believes the law views - homosexuality.

The issue could come down to whether homosexuality is considered a "status" or "conduct."

Justice Ruth Bader Ginsburg, in an unrelated high court ruling in June, offered a clue to how she might decide the question. When talking about laws affecting homosexual rights, Ginsburg said, "Our decisions have declined to distinguish between status and conduct in this context."

What Ginsburg suggests is that homosexuality is a status, something courts have generally given greater legal protection, as an "identifiable class." But placing homosexuality in the "conduct" category would suggest that being gay is, at least in part, a choice and perhaps provide less constitutional protection.

It is a fundamental, landmark question: Do civil rights laws and the broad constitutional protection apply in the same-sex marriage context?

Assuming the high court membership remains the same over the next few years, the vote of Justice Anthony Kennedy will be key. A moderate conservative, he is the "swing" vote on this court, whose views on hot-button cases often are in harmony with more liberal colleagues.

Predicting how the court will ultimately rule is often futile, especially since the court is about to get its fourth new member in the last five years.

Filed under: Same-sex marriage • Supreme Court
soundoff (19 Responses)
  1. Steph

    To all of you tea partiers, aka defenders of the constitution:

    There is absolutely nothing, zip zilch, zero, about marriage in the constitution! You can not tell another adult who they can or can't marry. The government doesn't have this right.

    Churches can decide who they marry in their church, but the goverment cannot decide!

    August 4, 2010 05:16 pm at 5:16 pm |
  2. Steph

    According to Rand Paul, if it isn't in the constitution, you can't make a law about it. The constitution says nothing about who can marry bring on the gay marriages in all 50 states.

    Oh, doesn't it suck, tea partiers, when your own slogans come to bit you in the butt?!?! Ha! Ha! Ha!

    August 4, 2010 05:22 pm at 5:22 pm |
  3. Augsbee

    This is a dangerous law in that Heterosexual persons can use it for personal gain such as 2 friends (males or females) getting married for the sake of not paying higher taxes, qualify for better health/auto insurance prices, gain benefits as a marriage, etc.... when the marriage in reality is phony, there is no relationship. I'm concerned that this law will be abused by Heterosexuals.
    Otherwise, I see no reason why gays, lesbians shouldn't get married just like any one of us would want to do with the one we love.

    August 4, 2010 05:40 pm at 5:40 pm |
  4. Victim of GOP Taliban

    Here we go again with an endless Wedge issue debate to divide the nation into meaningless chatter about activism and religion. Please doesn't the nation have more urgent matters to deal with other than sexual orientation and whether or not someone's religion is compatible?

    August 4, 2010 05:41 pm at 5:41 pm |
  5. jeff jackson, alabama

    How dangerous is it when one man can overturn a free
    vote by the people in America ????????????

    August 4, 2010 05:43 pm at 5:43 pm |
  6. Naqib

    There should be no law against same sex marriage, polygamy or any other thing free people want to do. Besides... I like the idea of two dozen tax exemptions.


    August 4, 2010 06:28 pm at 6:28 pm |
  7. jim

    This is no surprise. The courts continue to overturn the will of the people.Most of these judges need to be thrown out of office.

    August 4, 2010 06:28 pm at 6:28 pm |
  8. vegage

    Finally, justice has been served. This is going to be the same as happened with interracial marriages. Because some people forget or do not know that there were states than banned in their constitutions interracial marriages and many had anti-miscegenation laws until the supreme court in 1967 ruled unanimously that those laws were unconstitutional. I think people in this country have short memory or are ignorants.

    August 4, 2010 06:29 pm at 6:29 pm |
  9. Ric NY

    It's a LOOOOOOOOOOOOOOOOONG, LOOOOOOOOOOOONG road for you to the Supreme Court Miss Maggie Gallagher and "friends". Try not to get TOO tired along the way. 🙂

    August 4, 2010 06:53 pm at 6:53 pm |

    Equal protection? Where was this argument when the court ruled that
    millions of unborn babies had none and, thus, were unequal? The
    courts blew this one big time. But now we're supposed to honor
    same-sex couples who demand their equality. Judicial activism must
    not be allowed to thwart the will of the majority and, thus, create a
    judicial dictatorship.

    August 4, 2010 07:00 pm at 7:00 pm |
  11. Jeff Brown in Jersey

    conservatives should stay out of other people's bedrooms!

    August 4, 2010 07:01 pm at 7:01 pm |
  12. Marcus

    To the ones that are saying that this decision was against the will of the Californians... THAT IS NOT A VALID ARGUMENT.
    Let's remember back in the day when most of the habitants/voters of some states did NOT wanted that other habitants of their states had the right to vote, among others...
    They were the MAJORITY back then...

    August 4, 2010 07:05 pm at 7:05 pm |
  13. George Vreeland Hill

    Gay marriage is back and hopefully here to stay in California
    Right or wrong, it is a personal choice involving two people.
    No one else.
    Why do people care what others do with their private lives anyway?
    This has nothing to do with marriage between a man and a woman.
    A major problem with this issue is that society uses the Bible as the base for their anti-gay cause.
    The reality is that we do not even know if the Bible is the true word of God or a novel written many centuries ago by others.
    I believe in God, but if you believe in the Bible, then why do you judge gays when it tells you not to judge others?
    While I am not gay, I do have gay friends.
    I am proud to know them.
    If they want to get married, then let them.
    God will decide what is right or wrong.
    His answers may not come from a book.
    Stop using the Bible for life's answers.
    Its use has caused more harm than good.

    George Vreeland Hill

    August 4, 2010 07:18 pm at 7:18 pm |
  14. Kevin in Ohio

    The PEOPLE speak out against Perversion...and a liberal activist judge deems their position unconstitutional. What is next? God help us all.

    August 4, 2010 07:24 pm at 7:24 pm |
  15. jules sand-perkins

    Surely, the "status" or "conduct" question will have to consider the American Psychiatric Association's refusal to list homosexuality as a disorder in its diagnostic manual.

    August 4, 2010 07:26 pm at 7:26 pm |
  16. Malt

    Hmmmm, put it to a vote twice, then have some liberal judge throw it out. Weird. Slippery slope is back on....

    August 4, 2010 07:33 pm at 7:33 pm |
  17. Mike F

    Prop 8 is clearly unconstitutional. If a majority of voters said that "all blonds must stay home on even numbered Mondays," or "all blacks must go to separate schools," these might be voted in, but they would clearly be discriminatory against a specific class of citizens.

    August 4, 2010 07:48 pm at 7:48 pm |
  18. Louis E.

    "Being gay" is completely this context,that means that one combines in one's person 1)homosexual orientation and 2)the belief that homosexual activity is morally permissible.(These days,the latter is found among a greater number of heterosexuals than homosexuals).That one chooses to be in a same-sex sexual relationship is an issue of conduct and conduct alone.I believe (as a lifelong never-religious Democrat who holds liberal views on many issues) that the government has a responsibility to discourage such relationships and that they cause harm to those in them (by enabling each other's worst instincts) and around them (by setting a bad example for those struggling with same-sex attraction and providing an unpleasant spectacle for those who are free of it and of misguided sympathy for it).This is like subsidizing drinks for alcoholics,people...the first thing they want is the last thing they need,and their weakness for a bad habit (all homosexuality is!) is not "who they are".

    August 4, 2010 08:12 pm at 8:12 pm |
  19. JON

    Does anyone really thing that you chose to be gay....str8 is str8 and gay is gay . i think it's in our own DNA on how we turn out . I'm str8 and what is killing marriage is cheating husbands , cheating wife's just take a look at the both Houses .

    August 4, 2010 08:26 pm at 8:26 pm |