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Prop. 8 ruling: why it might not go to the Supreme Court

A federal court overturned Prop. 8 Tuesday, apparently setting the stage for the case to move to the Supreme Court. But the judge's ruling has made some legal analysts think twice about what might happen next. 

By Daniel B. WoodStaff writer / February 8, 2012

Molly McKay (l.) reads the ruling by the US Ninth Circuit Court of Appeals stating that Proposition 8 is unconstitutional Tuesday in front of the James Browning United States Courthouse in San Francisco.

Dan Honda/The Tribune/Bay Area News Group/AP

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A day after the US Ninth Circuit Court of Appeals overturned Proposition 8California's 2008 voter-approved ban on gay marriage – the big question is: What happens next? 

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The Alliance Defense Fund, which helped to defend Prop. 8 in court, has not divulged its plans, but senior counsel Brian Raum has said the group expects to make a decision "in due time."

One option is to go back to the Ninth Circuit. Tuesday's ruling was by a three-judge panel. Prop. 8's legal supporters could ask the full court of 11 judges to review the case "en banc." 

The other option is to appeal the ruling to the US Supreme Court. For months, legal experts have suggested that the case was almost certain to end up in the Supreme Court. But Tuesday's decision by Judge Stephen Reinhardt is now making some analysts think twice. 

Some say the issue remains far too weighty for the Supreme Court to ignore. But others suggest that Judge Reinhardt's opinion might have been written precisely to try to dissuade the Supreme Court from overturning it – and it could work.

In short, Reinhardt said the decision to overturn Prop. 8 was not founded on a fundamental right for gays and lesbians to marry. Rather, Reinhardt's decision was based on a 1996 Supreme Court decision, Romer v. Evans, which struck down a Colorado law – passed by state voters – that prevented local governments from enacting measures to protect gay and lesbian residents.

The Supreme Court struck down Colorado's Amendment 2 because it "withdraws from homosexuals, but no others, specific legal protection," wrote Justice Anthony Kennedy in the majority opinion. So, reasoned Reinhardt, Prop. 8 also unfairly singles out gays and lesbians.

It irrationally denies them access to the term "marriage," even though they already have the legal protections of marriage through domestic-partnership laws, and it also takes away a legal right they already had, Reinhardt wrote. (Earlier in 2008, a state Supreme Court ruling had made gay marriage legal.)

Justice Kennedy is seen as the key swing vote on the US Supreme Court, and “I think Judge Reinhardt absolutely wrote a narrow decision as if he were writing a letter directly to Justice Kennedy,” says Jessica Levinson, a professor at Loyola Law School in Los Angeles.

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