After Today's Prop 8 Victory, What's Next for Same-Sex Marriage?

Never before has a federal court of appeals declared that gay marriage is protected by the U.S. Constitution. Today's decision has the potential to benefit not only thousands of gay Californians but could establish the foundation for extension of marriage equality to all Americans.
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Today's landmark decision of a federal appeals court striking down California's Proposition 8, which denied marriage rights to same-sex couples, is cause to celebrate. While there have been a few state courts to rule that gays and lesbians are entitled to equal marriage rights under state law, never before has a federal court of appeals -- the level just below the Supreme Court -- declared that gay marriage is protected by the U.S. Constitution. Today's decision has the potential to benefit not only thousands of gay Californians but could establish the foundation for extension of marriage equality to all Americans.

So what's next for Proposition 8 and the supporters of same-sex marriage?

In the short-term, gay couples still cannot marry in California. Although the ban on same-sex marriage has been invalidated, the court is likely to stay its decision pending appeal. While this is disappointing to couples eager to marry, issuance of a stay is normal procedure for a court ruling on a controversial issue in an unsettled area of law. The stay prevents gay couples from marrying until a higher court determines whether to hear the case. If there's no appeal, the stay will eventually be lifted and gay couples will be able to wed.

The million-dollar question is what will the Supreme Court do. While an eventual appeal of today's decision by the three-judge panel of the federal court of appeals is likely, it won't happen immediately. Before seeking Supreme Court review, the parties will likely first request the same federal appeals court that issued the decision today to reconsider its ruling. There's also the possibility that other judges on the appeals court will decide on their own to hear the case "en banc" -- legal terminology for review by a larger group of 11 appeals courts judges. That process could take a year or more. The Proposition 8 case is, therefore, not likely to reach the Supreme Court until 2013, and quite possibly not until 2014.

Gay rights lawyers have mixed feelings about an appeal to the Supreme Court. Some were opposed to the Proposition 8 lawsuit from the beginning, fearing what the conservative-leaning Roberts Court might do. In so many cases dealing with high-profile, controversial issues -- from affirmative action to the Second Amendment -- the Court's conservative wing has emerged triumphant. If the Court decides against marriage equality in the Proposition 8 case, it will set a precedent that may take decades to undo. Given the evidence of public views moving quickly in the direction of acceptance of LGBT rights, many gay rights activists would prefer to wait a few more years before bringing a marriage equality case to the Supreme Court.

With four Justices expected to vote against gay marriage (Roberts, Thomas, Scalia, Alito) and four others expected to vote in favor (Ginsburg, Breyer, Sotomayor, Kagan), how the Court rules is expected to turn on the vote of Anthony Kennedy, the usual swing vote. And that, perhaps surprisingly, buoys the hopes of many in the gay rights community.

The Supreme Court has twice before squarely ruled on gay rights issues and, in both cases, Kennedy wrote strong opinions endorsing equality for all Americans regardless of sexual orientation. In the most recent of those cases, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and "other family relationships." "These matters," Kennedy continued, "involving the most intimate and personal choices a person may make in a lifetime, choices central or personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do," Kennedy wrote.

Students of the Supreme Court also recognize Justice Kennedy to be the Justice most likely to side with the individual against the government. His libertarian streak sometimes leads him to vote in ways that liberals love -- he voted to affirm women's right to choose =- and other times to vote in ways that conservatives love -- as in the notorious Citizens United case, which freed up business corporations to spend unlimited amounts of money to influence federal elections. Love him or hate him, Kennedy's libertarianism bodes well for proponents of gay marriage.

The California case in particular might be attractive to Kennedy because he could rule narrowly, striking down Proposition 8 without requiring same-sex marriage nationwide. In a 1996 case, Kennedy wrote an opinion for the Court invalidating an anti-gay ballot initiative adopted in Colorado, reasoning that the public debate over the measure betrayed the true goal of the law to be animus toward gay people rather than any legitimate public policy objective. In the Proposition 8 case, the trial judge found the same was true in California. "The campaign to pass Proposition relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships," the judge held. The Supreme Court could hold invalid Proposition 8 because of this history without addressing the constitutionality of gay marriage elsewhere.

Even if the Supreme Court decides to take the Proposition 8 case, the Justices might avoid the same-sex marriage question altogether. One of the subsidiary issues in the case is whether the proponents of Proposition 8 are proper parties to the lawsuit. Usually state laws, including ballot measures, are defended in court by the state's attorney general. In California, however, the attorneys general have refused to participate in the lawsuit, arguing that they agree with the challengers that Proposition 8 is unconstitutional. The federal courts in California allowed the initiative's proponents to defend the law, despite some language in an earlier Supreme Court decision that suggested initiative backers do not have standing to defend a law. The Justices could focus on this issue and reserve the marriage question until after the standing question is resolved.

Yet the Supreme Court can't dodge the marriage equality question for long. Even if they avoid ruling on Proposition 8's constitutionality or rule narrowly to give gay people marriage rights only in California, other cases dealing with challenges to the federal Defense of Marriage Act are already winding their way through the federal courts. Some constitutional experts predict that, despite all the attention given to the Proposition 8 lawsuit, a DOMA case is likely to be the first vehicle to present the Justices with the same-sex marriage question.

So there's still a way to go before marriage equality comes before the Supreme Court. But it is only a matter of time.

(Author's Note: An earlier version erroneously suggested that the parties were first required to seek en banc review by this same federal court. Such an appeal is optional.)

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