The Lookout

Will the Supreme Court intervene over Proposition 8?

Zachary Roth
The Lookout

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Prop 8 paintiffs Jeff Zarrillo, left, and Paul Katami, middle, with their lawyer Ted Olson in Los Angeles, Feb. …

A panel of federal judges has ruled California's ban on gay marriage unconstitutional. But that's hardly the end of the story.

Supporters of the marriage ban -- passed by voters as Proposition 8 in 2008 -- will almost certainly appeal the ruling, which was made by a three-judge panel of the 9th Circuit Court of Appeals. That means Prop. 8's fate -- and perhaps the fate of other efforts to ban gay marriage -- could ultimately be decided by the U.S. Supreme Court.

But first, the nation's top court would have to decide to take the case, known as Perry v. Brown. How likely is it that it'll do so?

Several legal experts say they'd be surprised if the Supreme Court chose to intervene. Here's why: Though it struck down Prop. 8, the 9th Circuit panel stopped short of addressing the larger question of whether gay marriage bans could ever be constitutional. Instead, it ruled more narrowly that because California had earlier allowed gays to marry, Prop. 8 violated the constitution's Equal Protection clause, by removing rights that had previously existed. As precedent, Judge Stephen Reinhardt pointed to a 1996 decision, Romer v. Evans, striking down an effort by Colorado to prevent the government from passing anti-discrimination laws to protect gays.

That specific set of facts -- the removal of previously existing rights -- doesn't apply to most states. As a result, some experts say, the narrowness of the panel's ruling may dissuade the Supreme Court from taking the case, since the justices usually prefer to get involved in cases where their rulings will have broader applications for the country as a whole.

That's the view of David Boies, the high-profile lawyer who represented the two same-sex couples challenging the case.  "The grounds for the opinion, I think, do make it somewhat less likely that the Supreme Court will take it," Boies told reporters on a conference call, since it "just applies to California."

Jeffrey Toobin, the author of the 2007 book, "The Nine: Inside the Secret World of the Supreme Court," appears even more convinced that the justices will stay away. "This withdrawal of the right to marry has occurred in no state other than California," Toobin wrote Wednesday on the website of The New Yorker, where he's a staff writer. "[T]he Supreme Court's Justices are unlikely to review a case that has no broader application."

But not everyone agrees. Tom Goldstein, a Washington lawyer who writes the well-regarded SCOTUSblog, which covers the Supreme Court closely, told Yahoo News that unless the full 9th Circuit reverses the decision, it's "very likely" that the high court will weigh in.

"The question is so important, and the Court tends to review decisions invalidating state laws when they present important questions," Goldstein wrote in an email.

Jason Mazzone, the Gerald Baylin Professor of Law at Brooklyn Law School, agreed. Mazzone said in an interview with Yahoo News that he thinks it's "inevitable" that the Supremes will ultimately take the case, noting that only four of the nine justices are need to vote in favor of getting involved.

Why? First, Mazzone pointed out, the panel's ruling was 2-1, rather than unanimous, and it came from the 9th Circuit, the most reversed circuit in the country. Mazzone added that Reinhardt, who wrote the decision, is "among the most reversed" judges. As such, the ruling represents a "perfect storm for Supreme Court review," he said.

Further, Mazzone argued that California isn't the only state to have granted marriage rights, then taken them away. Hawaii, he wrote in a follow-up email, "did exactly what California did here: the courts granted marriage rights, a referendum repealed them." So confining the implications of the ruling to the Golden State alone could be difficult.

That's not all. By ruling that the people of California couldn't remove rights previously conferred, Mazzone argued, the panel was saying that "if a state court grants rights under the state constitution, then any effort by the people of the state to amend the state constitution to correct that decision violates the federal Constitution." He described that view as "breath-taking."

Gay marriage aside, that difference of interpretation of the courts' authority is "a very significant issue," Mazzone said. "That, by itself, would be a reason to grant review."

And as if all that isn't enough, Mazzone said, the Supreme Court might also be ready to issue a wider ruling on the constitutionality of gay marriage bans in general -- either because the liberal judges see a chance to strike down such bans, or because the conservative ones see a chance to uphold them. The 9th Circuit panel may have tried to confine itself to the California case, but the Supreme Court, he noted, isn't similarly bound.

Still, we could be waiting a while for any Supreme Court ruling. Mazzone said that even if the full 9th Circuit doesn't first get involved, the Supremes likely wouldn't get to the case until October at the very earliest. And if the lower court does intervene, the case certainly wouldn't get to the Supreme Court until 2013. That means that, for better or worse, the issue is unlikely to be resolved before the presidential election this fall.

As for how the justices might rule if the case does come their way, no one's too confident. But most observers expect the swing vote, as so often, to be Justice Kennedy, a member of the court's conservative majority who nonetheless sided with its liberal members in writing the opinions in both Romer v. Evans and Lawrence v. Texas, the landmark 2003 case which struck down anti-sodomy laws. Several legal experts have noted that, in its very narrowness, Reinhardt's opinion appears to have been written specifically to appeal to Kennedy.

"I wouldn't bet my house on five votes to require gay marriage in all U.S. states, territories, and Guantanamo," wrote Garrett Epps, a law professor at the University of Baltimore and a veteran legal writer, on the website of The American Prospect. "But I suspect Reinhardt has a different outcome in his mind—four Justices (you fill in the names) supporting the broader right to marry, four others (again, you pick 'em) denying its existence, and one, whose initials might be AMK, affirming Reinhardt's narrower opinion."

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