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.
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By pointing to Romer v. Evans, Professor Levinson says, Reinhardt “made it sound like this decision [on Prop. 8] followed undeniably from some of Kennedy’s own thinking on that case.”Skip to next paragraph
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She also notes how Reinhardt steered clear of any implication of a broader right to gay marriage. “We …. need not and do not consider whether same-sex couples have a fundamental right to marry,” the opinion stated.
This makes it less certain that the Supreme Court will act, agrees Kevin Johnson, dean of the law school at the University of California, Davis. “Since the decision is limited in scope, the chances are not as great of the Supreme Court [taking the case] than if the Ninth Circuit had more broadly decided the issue.”
That said, Professor Johnson says he is somewhat mystified by all the talk about the "narrow" ruling.
"Conservatives often deride judicial activism and overbroad decisions," he says. "Here, the issues before the Ninth Circuit – the California Supreme Court gay marriage decision was overrode by initiative to deny use of the term ‘marriage’ by same sex couples – arguably required narrow resolution.”
"Proponents of Prop. 8 would have complained of judicial activism if Judge Reinhardt had written an expansive opinion," he adds. "In some ways, the Ninth Circuit was in a tough position to please everyone.”
Regardless, the high court justices could still find ample reason to take the case, says Jesse Choper, a constitutional law scholar at Boalt Hall, the University of California at Berkeley School of Law.
“The chances of them taking it are very high,” he says. “The issue is the striking down of a vote by people in the biggest state in the country on a very controversial issue that everyone is watching.”
For his part, Caleb Mason, a professor at Southwestern Law School in Los Angeles, suggests that the ruling's lack of an obvious, immediate impact outside California makes the Supreme Court less likely to take the case. But he's wary of impatient predictions.
"Any prediction more definite than that is just armchair psychologizing about the justices," he says. "As to why we still have wait, the answer is that the Supreme Court gets the final word on what the Constitution means.”
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