Proposition 8: What Happens Next?
Now that a Ninth Circuit panel has ruled that California’s ban on gay marriage is unconstitutional, it seems inevitable that the ruling on Proposition 8 will eventually be appealed to the Supreme Court. But whether the Supreme Court agrees to hear it is another story.
At this point, proponents of Prop 8 have fourteen days to decide whether to petition for a rehearing. If granted, an eleven-judge panel of the Ninth Circuit will hear the case, which could take another six months to a year. If the initiative’s supporters choose to go straight to the Supreme Court, four of the nine justices would have to vote in favor of hearing the case for it to be taken up.
Judge Stephen Reinhardt, who wrote the majority opinion for the 2-1 ruling, determined that the initiative violated the Equal Protection clause of the 14th Amendment because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
The panel also declined to rule on the broader question of whether any ban on gay marriage would be unconstitutional, which could have had implications in other states, “because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.”
“This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds,” Reinhardt wrote.