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Will the Supreme Court Rule on Same-Sex Marriage?

On Tuesday, the Ninth Circuit Court of Appeals upheld the 2010 district court ruling that California’s Proposition 8  forbidding same-sex marriages was unconstitutional. It was the first time a federal appeals court had overturned a state law against same-sex marriage. In the majority opinion, Judge Stephen Reinhardt wrote that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and the human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

As I wrote at the time of the original ruling, the legal case for upholding same-sex marriage bans is weak. Laws like Proposition 8 mean denying a group of people the right to legally marry whoever they choose largely on the basis of a belief that certain types of marriages are inappropriate or somehow do not really count as marriage. But the Fourteenth Amendment is usually understood to require the state to have a more compelling reason than such private moral beliefs of certain citizens for denying others “the equal protection of the laws,” since such beliefs could be used to justify essentially any type of discrimination whatsoever.

But as also I wrote at the time of the original ruling, that doesn’t mean that there are necessarily five votes on the Supreme Court to uphold a constitutional right to marriage for same-sex couples. A Supreme Court ruling upholding bans on same-sex marriage would be hard to undo, which is why many advocates of same-sex marriage have been reluctant to make their case in the courts. Most believe that a Supreme Court decision would hinge on Justice Kennedy, who wrote the decision in two landmark gay rights cases but has also said that whether same-sex marriage can be banned is an open question.

But while defenders of Proposition 8 will almost certainly appeal the case—at least to an en banc panel of the circuit court—that doesn’t mean that the Supreme Court will necessarily take up the question of whether same-sex couple have a constitutional right to marry. That’s because the circuit court judges avoided making a broad claims about a constitutional right to marriage. Instead, as Dahlia Lithwick explains, they tried to rule as narrowly as possible on the specific case of Proposition 8. Instead of asserting that the Constitution grants Americans a general right to marry whoever they choose regardless of gender, the court merely ruled that California could not take away the right to marry from same-sex couples after it had already been granted.

That may seem like a minor distinction, but it offers the Supreme Court a way to sidestep the general issue by considering only on California’s law or by avoiding taking up the case altogether. As Adam Winkler suggests, the opportunity to rule narrowly might make the case more attractive to Justice Kennedy, who may want to avoid granting same-sex couple a general right to marry.

But David Cole bets that Supreme Court will decide to take up the issue anyway. As Cole points out, it seems disingenuous to suggest that gay couples right to marry is only protected it was formally granted before it was taken away, especially when the circuit court’s reasoning seems to apply just as much to the general issue as to the narrow issue the court actually decided. One way or another, with a number of challenges to the federal Defense of Marriage Act also making their way through the courts, the question can’t be avoided forever.

Proposition 8 Protest image from Karin Hildebrand Lau /


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