02/08/2012 01:17 pm ET Updated Apr 09, 2012

Why the Proposition 8 Ruling Has a Good Chance of Being Affirmed by the Supreme Court

It is easy to forget, at a time when the question of same-sex marriage dominates the current debates over gay rights, that one of the most important gay rights issues twenty short years ago was whether voters could enact state constitutional amendments prohibiting the enactment of laws protecting lesbians, gay men, and bisexuals from discrimination. In a 1996 opinion called Romer v. Evans, the Supreme Court held that such state constitutional amendments violated the federal constitution.

The Romer case arose because gay rights opponents in Colorado were able to persuade a majority of state voters that when municipalities like Denver and Boulder enacted laws prohibiting sexual orientation discrimination, they were conferring "special rights" on gay people. But the Supreme Court, in an opinion written by Justice Anthony Kennedy, concluded that the Colorado constitutional amendment impermissibly targeted gay people and deprived them of significant legal rights enjoyed by all other citizens.

The federal appellate court opinion striking down Proposition 8 relies extensively on Justice Kennedy's ruling in Romer. Proposition 8, like the Colorado constitutional amendment in Romer, singles out a group of individuals for disfavored status and deprives them of rights they previously enjoyed. The California Supreme Court, prior to Proposition 8, had held that same-sex couples had a constitutional right to marry. Proposition 8, the federal appellate court has now concluded, is unconstitutional because it denies gay people of that pre-existing right without a valid justification.

The federal appellate court did not reach the more legally contentious question of whether same-sex couples have a fundamental right to marry. It also did not reach the question of whether the government, under equality principles, can prohibit same-sex couples from marrying when it allows different-sex couples to do so. Instead, it addressed a question that is largely unique to California: May state voters amend the state constitution to deprive same-sex couples of a right (that of marriage) that they already enjoyed under state law?

It bears noting that, if the Supreme Court decides to hear the Proposition 8 case, Justice Kennedy will probably provide the deciding vote, breaking the likely tie between the four more liberal judges and the four more conservative ones. The federal appellate court has made it easier for Justice Kennedy to side with the liberal judges because all he would have to do is apply the Romer opinion that he wrote sixteen years ago to the California same-sex marriage controversy.

It is true that the limited nature of the Proposition 8 ruling makes it less of a bonanza for gay rights proponents than it might seem at first. If the Supreme Court issues an opinion following the appellate court's reasoning, it might have a limited impact on legal challenges to same-sex marriage bans in other states. But it is precisely the narrow nature of the appellate court's ruling that significantly improves the chances of it being affirmed by the Supreme Court. And even if such a Supreme Court ruling does not immediately translate into legal victories in other states, a decision by the nation's highest court holding that same-sex couples in California, the country's most populous state, can marry would nonetheless be a tremendous victory for marriage equality proponents.