Last Tuesday, equality advocates across California and around the world celebrated the decision by a panel of the United States Court of Appeal for the Ninth Circuit that deemed unconstitutional California’s Proposition 8, which stripped gays and lesbians of the right to marry. Since then, there have been many questions about what the ruling means, and what happens next.

It’s useful to begin with a little bit about the history of the battle for marriage equality in California. In 1977, the Legislature of California amended its family laws to make it clear that marriage in that state was restricted to opposite-sex partners only. The provision drew little attention at the time, since the movement for marriage equality had not yet begun.

After a court decision in Hawaii that struck down that state’s marriage laws as discriminatory, the movement to put in place bans on same-sex marriage began in earnest. In 1996, the United States Congress passed the Defense of Marriage Act (DOMA), which banned the federal government from recognizing marriages between same-sex partners, and allowed states not to recognize such marriages conducted in other countries, or other states. Various states passed their own versions of DOMA, changing their laws, and in some cases amending their constitutions to stop the courts from intervening.

In 2000, the citizens of California, through the initiative process, enacted Proposition 22, adding language to the state’s Family Code explicitly banning same-sex couples from marrying. Under the California initiative system, no ballot measure passed by the people can be amended or repealed by the state legislature. As a result, the drive for marriage equality in the most populous state in the US appeared to be blocked.

Two bills to legalize marriage equality passed the legislature, but both were vetoed by then Governor Arnold Schwarzenegger, who argued that it was improper for the legislature to overturn a ballot initiative, and that it was a matter for the courts to decide. On May 15, 2008, the California Supreme Court ruled that Proposition 22 violated the state constitution’s Equal Protection Clause. After a short delay, gay and lesbian couples in California were able to start getting married.

A network of conservative Christians set to work immediately, collecting signatures to force a referendum to amend California’s constitution to ban same-sex marriage, effectively reversing the California Supreme Court’s ruling. This ballot initiative was designated as Proposition 8, and on November 4, 2008, after a bitterly fought campaign, the most expensive initiative campaign in US history, Proposition 8 passed by a 52-48 percent margin, putting an abrupt end to marriage equality in California. Efforts to have the California Supreme Court to overturn the result failed.

Days before the California Supreme Court’s ruling on Proposition 8, two couples represented by powerhouse attorneys Theodore Olsen and David Boies, who were on opposite sides in the infamous Bush v. Gore case, filed a lawsuit in federal district court in San Francisco. Most activists had intentionally avoided going to federal court, fearing that a loss there could set the cause back nationwide. No California State official was willing to defend Proposition 8, so the proponents of the ballot initiative were allowed to defend it in court.

After a 12-day trial, US District Court Chief Judge Vaughn Walker laid out a detailed judgment finding that Proposition 8 was discriminatory, and that it advanced no rational state interest. As a result, Walker found it unconstitutional under the Fourteenth Amendment to the United States Constitution, which, among other things, guarantees all citizens equal protection under the law, and due process.

The backers of Proposition 8 immediately appealed the case to the United States Court of Appeals for the Ninth Circuit, which has jurisdiction over California and a number of other Western states. A 3-judge panel heard the case, and after resolving various other legal arguments, upheld the district court decision by a 2-1 vote in a ruling released on Tuesday.

In deciding the case, the panel ruled very narrowly. They intentionally avoided deciding whether or not there is a right to marriage equality under the US Constitution. Instead, they held that the act of taking away from a specific group of people a right already given to them was what was unconstitutional.

With that in mind, this case could move in any one of a number of directions. First, it’s important to stress that in the near term, Proposition 8 remains in force, and wedding bells won’t be ringing for gay and lesbian Californians just yet. Supporters of Proposition 8 have vowed to appeal the ruling, potentially dragging the case out for some time. They have a few options.

First, they can ask for what’s known as an en banc hearing before the Ninth Circuit. There are many judges who are part of the Ninth Circuit, and this case was heard by a randomly selected panel of three of those judges. If the backers of Proposition 8 choose to request an en banc hearing, then all active judges on the court will vote whether or not to permit the case to be heard again. If a majority agree, then ten judges will be chosen at random, and joined by Ninth Circuit Chief Judge Alex Kozinski, will hear the case all over again. The losing side in this situation can ask for what’s informally known as a super en banc hearing, that is, before all the active judges on the Ninth Circuit, but this is rare.

At any point in the process from now on, the backers of Proposition 8 can appeal directly to the US Supreme Court. It was widely viewed that whoever lost would appeal directly to the US Supreme Court, skipping en banc hearings before the Ninth Circuit. However, the Supreme Court takes very few cases each year, and generally only takes on cases that are of national importance. Furthermore, the ruling from the Ninth Circuit was very narrowly written, and only dealt with the unique situation in California, where rights were given and then taken away. Because the ruling doesn’t apply outside of California, it is much less likely now (though not impossible) that the Supreme Court will agree to take the case, perhaps choosing to leave the broader battle over marriage equality for another day. In such a situation, the Ninth Circuit’s decision would be final, and that battle over Proposition 8 would be over.

Submitted By: Sameer Ismail

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