Today's landmark decision of a federal appeals court striking down California's Proposition 8, which denied marriage rights to same-sex couples, is cause to celebrate. While there have been a few state courts to rule that gays and lesbians are entitled to equal marriage rights under state law, never before has a federal court of appeals -- the level just below the Supreme Court -- declared that gay marriage is protected by the U.S. Constitution. Today's decision has the potential to benefit not only thousands of gay Californians but could establish the foundation for extension of marriage equality to all Americans.
So what's next for Proposition 8 and the supporters of same-sex marriage?
In the short-term, gay couples still cannot marry in California. Although the ban on same-sex marriage has been invalidated, the court is likely to stay its decision pending appeal. While this is disappointing to couples eager to marry, issuance of a stay is normal procedure for a court ruling on a controversial issue in an unsettled area of law. The stay prevents gay couples from marrying until a higher court determines whether to hear the case. If there's no appeal, the stay will eventually be lifted and gay couples will be able to wed.
The million-dollar question is what will the Supreme Court do. While an eventual appeal of today's decision by the three-judge panel of the federal court of appeals is likely, it won't happen immediately. Before seeking Supreme Court review, the parties will likely first request the same federal appeals court that issued the decision today to reconsider its ruling. There's also the possibility that other judges on the appeals court will decide on their own to hear the case "en banc" -- legal terminology for review by a larger group of 11 appeals courts judges. That process could take a year or more. The Proposition 8 case is, therefore, not likely to reach the Supreme Court until 2013, and quite possibly not until 2014.
Gay rights lawyers have mixed feelings about an appeal to the Supreme Court. Some were opposed to the Proposition 8 lawsuit from the beginning, fearing what the conservative-leaning Roberts Court might do. In so many cases dealing with high-profile, controversial issues -- from affirmative action to the Second Amendment -- the Court's conservative wing has emerged triumphant. If the Court decides against marriage equality in the Proposition 8 case, it will set a precedent that may take decades to undo. Given the evidence of public views moving quickly in the direction of acceptance of LGBT rights, many gay rights activists would prefer to wait a few more years before bringing a marriage equality case to the Supreme Court.
With four Justices expected to vote against gay marriage (Roberts, Thomas, Scalia, Alito) and four others expected to vote in favor (Ginsburg, Breyer, Sotomayor, Kagan), how the Court rules is expected to turn on the vote of Anthony Kennedy, the usual swing vote. And that, perhaps surprisingly, buoys the hopes of many in the gay rights community.
The Supreme Court has twice before squarely ruled on gay rights issues and, in both cases, Kennedy wrote strong opinions endorsing equality for all Americans regardless of sexual orientation. In the most recent of those cases, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and "other family relationships." "These matters," Kennedy continued, "involving the most intimate and personal choices a person may make in a lifetime, choices central or personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do," Kennedy wrote.
Students of the Supreme Court also recognize Justice Kennedy to be the Justice most likely to side with the individual against the government. His libertarian streak sometimes leads him to vote in ways that liberals love -- he voted to affirm women's right to choose =- and other times to vote in ways that conservatives love -- as in the notorious Citizens United case, which freed up business corporations to spend unlimited amounts of money to influence federal elections. Love him or hate him, Kennedy's libertarianism bodes well for proponents of gay marriage.
The California case in particular might be attractive to Kennedy because he could rule narrowly, striking down Proposition 8 without requiring same-sex marriage nationwide. In a 1996 case, Kennedy wrote an opinion for the Court invalidating an anti-gay ballot initiative adopted in Colorado, reasoning that the public debate over the measure betrayed the true goal of the law to be animus toward gay people rather than any legitimate public policy objective. In the Proposition 8 case, the trial judge found the same was true in California. "The campaign to pass Proposition relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships," the judge held. The Supreme Court could hold invalid Proposition 8 because of this history without addressing the constitutionality of gay marriage elsewhere.
Even if the Supreme Court decides to take the Proposition 8 case, the Justices might avoid the same-sex marriage question altogether. One of the subsidiary issues in the case is whether the proponents of Proposition 8 are proper parties to the lawsuit. Usually state laws, including ballot measures, are defended in court by the state's attorney general. In California, however, the attorneys general have refused to participate in the lawsuit, arguing that they agree with the challengers that Proposition 8 is unconstitutional. The federal courts in California allowed the initiative's proponents to defend the law, despite some language in an earlier Supreme Court decision that suggested initiative backers do not have standing to defend a law. The Justices could focus on this issue and reserve the marriage question until after the standing question is resolved.
Yet the Supreme Court can't dodge the marriage equality question for long. Even if they avoid ruling on Proposition 8's constitutionality or rule narrowly to give gay people marriage rights only in California, other cases dealing with challenges to the federal Defense of Marriage Act are already winding their way through the federal courts. Some constitutional experts predict that, despite all the attention given to the Proposition 8 lawsuit, a DOMA case is likely to be the first vehicle to present the Justices with the same-sex marriage question.
So there's still a way to go before marriage equality comes before the Supreme Court. But it is only a matter of time.
(Author's Note: An earlier version erroneously suggested that the parties were first required to seek en banc review by this same federal court. Such an appeal is optional.)
Follow Adam Winkler on Twitter: www.twitter.com/adamwinkler
Jon Davidson: Prop 8: One Landmark Decision Begets Another
Progressive legends are quickly showing their real agendas and consciences toward Individual freedoms. Those who disagree with them will face the Full Power of US Government Sanctions against their persons, and or businesses/religious organization until beaten into submission. The Courts deliberately created this law, outside the will of We the People, and or our Representative legislative Due Process. Now they insist it Doesn't Matter how this law was created: We a handful of select Judges merely Mandate we are Superior than the entire Population of California voters
They deliberately narrowed their Judicial Opinion in hopes of avoiding SCOTUS challenge. I suspect they're going lose because the very fabric of both our Constitution, and Due Process of law has been profusely violated via this Court decree. I believe California should be the next contestant added to the 1965 voting rights act, but that another entirely new legal argument, to be Presented before SCOTUS Review
So if a referendum gets passed that brings back segregation you don't think the courts have a place to strike it down.
What an... interesting... view point.
For the empirical record: a) the initiative (in 4 states) repealed poll taxes 4 decades before the Supreme Court did; b) California, Oregon and several other states repealed segregation at a referendum in the 1910s (thanks to abolishing the poll tax, actually ALLOWING blacks the right to vote!); c) some of the worst minority abuses were from the courts: the Civil Rights Cases (1883) in which the oligarchs restricted the equal protection clause to cover only actions by a State, not by individuals, thereby allowing discrimination by individuals; Pace v Alabama (1883) in which the oligarchs unanimously affirmed the constitutionality of state anti-miscegenation laws; Bowers v Hardwick (1986) in which the oligarchs upheld a ban on sodomy. Most of the courts reversal are its own lack of defence of minorities.
Courts thus lag, rather than lead social change. Indeed, 26 judgements found no right to SSM! Nice hypothetical: it's unlikely to ever happen and if it did, history would suggest courts would not step in. We also have this thing called federalism and some parts of the US are still as segregated as they have ever been.
* Oklahoma legislature prevented blacks from voting in 1915. The legislature tried to these grandfather clauses to the voters to entrench it into the state constitution. They rejected it. It remained on the statute books all the way till 1939 when the court invalidated the law, despite it being rejected by the voters in 1916.
* Korematsu in which the oligarchs sent Japanese-Americans to concentration camps. In 1944 Coloradan's held an initiative to ban Japanese aliens from ever owning any land in the state. The voters flatly rejected it. It took another 15 years till the Supreme Court invalidated these laws, which were adopted in14 other legislatures;
* In Reitman, they invalidated an initiative which protected property. But by 1968 - 5 years later - polls had shifted and the federal government passed the Fair Housing Act; in Romer, three states rejected similar bans and in any event anti-discrimination laws don't work as they are rarely enforced;
* Bowers v Hardwick in which the oligarchs upheld a ban on sodomy. They overruled that in 2003, only when a few states had the ban.
Even with Roe most states had already legalised abortion. Courts lag rather than lead social change. You have a naive view of courts operate. And if they did pass segregation (they won't thanks to initiative which abolished poll taxes), simple: don't live in that state. I suspect however we are tyrannizing them more than they are us given only 5-15% of the population would support such
Well, since a couple of liberal judges took it upon themselves to overthrow the will of the state's residents, I'd say it's headed back to court.
One of the lawyers arguing FOR gay marriage is a noted Republican.
CA Supreme Court ruled that Prop 22 violated the state constitution so a small majority of voters passed Prop 8 as a constitutional amendment.
Now there is a federal case challenging this portion of the CA constitution. I don't see the conflict here...Our system is working, let it happen.
Is it unlikely that SCOTUS will decided gay marriage for the entire US with this case.
Neither is in the Constitution, it's just the interpretation of a court. And SCOTUS ruled corporations are people, this is a lesser court. But SCOTUS may eventually agree - and THEN gay marriage will be truly constitutional - like the idea that corporations are people.
Fact: SCOTUS says corporations are people, a lower court says gays can marry. Both are just court judgements that interpret the constitution. That interpretation includes: corporations are people, and gays can marry. Nothing in the Constitution about either - in fact, nothing at all about marriage! Marriage itself is not defined in the Constitution.
The two rulings are exactly the same, except the SCOTUS is more settled. The fact that you argue this is disconcerting, you'll never know your rights. There is nothing in the Constitution about abortion, yet Roe v Wade made abortion a Constitutional right. Exact same thing for gay marriage - and for corporations as people.
You want to pretend that liberal findings are really in the Constitution, and conservative ones are obviously phony. Doesn't work that way, they all have the same legitimacy. Conservatives complain about "activist judges", but it cuts both ways. They give us Roe v Wade and Citizens, and they are both now the law of the land. Sorry, you don't get to overrule SCOTUS, the Founding Fathers wanted it that way.
Absolute seperation of church and state. Jefferson, Adams and the other Founders knew this was needed so that neither corrupts the other.
The church may observe their religious dogma without interference by the state....and visa versa. The state is not to be impinged by the church.
Allowing, and the state must, marriage licenses to non-heteros regardless of race, creed, sexual orientation or whatever does not harm to the religious right's freedom of their sectarian or rellgiious belief.
Does no harm.
Conversely, their DOMA and attempt to deny the LGBT community a state license to marry does do the LGBT community harm in the eyes of the judicial system. The right's religious dogma tries to deny the license which then violates the LGBT communtiy's civil rights. The freedom of belief is absolute. The freedom of practice is limited in that it can not violate another American's civil rights.
For example, if a religion required human sacrifice, they can believe that but they can not put it into practice without violating the civil rights of the one to be sacrificed.
Is that simply stated?
By default, same sex marriage will be allow in fairness. If heteros are allowed a state license, the same must be allowed for all Americans regardless of race, creed, sexual orientation or any other supposed subgroup definition.
Glad to hear that Prop 8 was overturned. Same sex marriage is fair and does not harm to the reigious folks who want to privately practice their religion.
Does no harm. Legal parlance.
No matter what happens, the orientation that ensures the survival of the himan race will more than likely have an egg waiting for you somewhere....
and China still has the one child per family law, so most of you can breathe a sigh of relief knowing that you never really had to stop playing dress-up or pretend, after all