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Prop. 8: appeals courts set stage for Supreme Court review of gay marriage

The Ninth Circuit on Tuesday declined to reexamine a ruling overturning California's Prop. 8 gay marriage ban as unconstitutional. The decision sets the stage for a Supreme Court showdown.

By Staff writer / June 5, 2012

Bob Sodervick waves a rainbow flag outside the US Courthouse in San Francisco, Calif., Tuesday. The 9th U.S. Circuit Court of Appeals has cleared the way for the US Supreme Court to consider California's gay marriage ban, declining an appeal to revisit the case.

Robert Galbraith/Reuters



An escalating showdown over gay rights in America appears to be heading inevitably to the US Supreme Court.

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Two major appeals court cases dealing with same-sex marriage are poised for possible review at the nation’s highest court – perhaps with decisions as early as next year.

A federal appeals court in San Francisco announced on Tuesday that it would not examine a February decision striking down as unconstitutional California’s Proposition 8 ballot initiative, which effectively banned same-sex marriages in the state.

IN PICTURES: Same sex marriage

The action clears the way for lawyers to file an immediate appeal to the Supreme Court.

In addition, last week an appeals court in Boston struck down the federal Defense of Marriage Act, saying it violated the equal protection rights of same-sex married couples in Massachusetts.

Lawyers in that case have not yet announced whether they will seek further review at the appeals court in Boston or appeal directly to the Supreme Court in Washington.

The legal action comes a few weeks after President Obama announced his support for same-sex marriage. It also comes as public opinion polls show the nation divided over the issue, but with gradual increasing acceptance of the practice.

Eight states plus the District of Columbia recognize same-sex marriages. At least 28 states have constitutional amendments restricting marriage to a union between one man and one woman.

Kennedy's decision?

Legal analysts are divided over how likely the high court is to take up the gay rights cases. If the high court does enter the fray, scholars say the key vote may reside with Justice Anthony Kennedy.

Justice Kennedy is considered a swing voter on certain issues, and his swing vote proved important in two key gay rights decisions, the 1996 case Romer v. Evans, and the 2003 case Lawrence v. Texas.

Kennedy wrote the majority opinion in both cases. Romer invalidated a Colorado effort to eliminate and ban special legal protections enacted for the gay community.

Appeals court judges in both the California and Massachusetts cases used Kennedy’s Romer decision and its equal protection approach as the supporting structure for their analyses.

While Kennedy has not shied away from expanding gay rights in past cases, it remains unclear whether he is prepared to embrace same-sex marriage.

For example, in the 2003 Lawrence case, Kennedy added an important limitation on the scope of his ruling. “The present case,” he wrote, “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Ninth Circuit case

In the California case, lawyers supporting the 2008 ballot initiative had asked the Ninth Circuit Court of Appeals to examine whether a federal judge and a divided three-judge Ninth Circuit panel were correct when they ruled that the ballot measure violated provisions of the US Constitution.

In its order released on Tuesday, the appeals court said that a majority of active judges voted not to re-hear the case.


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