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Prop. 8: U.S. Supreme Court might not take gay-marriage case

February 8, 2012 |  7:34 am

Proposition 8 ruling

Legal experts said that a federal appeals court's ruling that Proposition 8 -- California's 2008 voter-approved ban on same-sex marriage -- is unconstitutional is so narrowly written that it is an open question as to whether the U.S. Supreme Court will take the case.

The 2-1 ruling by a panel of the U.S. 9th Circuit Court of Appeals was written to limit its scope to California's borders and possibly even avoid review by the U.S. Supreme Court, legal experts said.

That could mean the 9th Circuit might have the final word on Proposition 8 because the ruling was so pointedly limited to California, a state where, the justices ruled, voters stripped a minority of a right that already existed and where the usual justifications for a same-sex marriage ban -- responsible parenting and procreation -- are undercut by domestic partner laws.

PHOTOS: Prop. 8 ruling

Proposition 8 passed as a constitutional amendment six months after the California Supreme Court struck down a state law that limited marriage to a man and a woman, and an estimated 18,000 same-sex couples married during that time. The initiative also did not affect parenting rights of gays and lesbians, which are protected under other state laws.

"That legal background does not exist in most states," said University of Minnesota Law School professor Dale Carpenter, who has followed the case.

Loyola law professor Douglas NeJaime agreed, noting that Tuesday's decision allows the U.S. Supreme Court to postpone a pronouncement on same-sex marriage until a more sweeping case comes along.


"The 9th Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale," NeJaime said.

The pro-Proposition 8 group ProtectMarriage could ask a larger panel of the 9th Circuit to review Tuesday's ruling, which could keep the case in the circuit for another year. If the group went directly to the Supreme Court and won review, the high court could rule on the case next year.

ProtectMarriage has long said it wanted the high court to get the case as soon as possible, but its representative said Tuesday that the organization has yet to decide its next step.

The court concluded that Prop. 8 served no purpose other than to "lessen the status and human dignity of gays and lesbians."


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-- Maura Dolan and Carol J. Williams

Photo: Opponents of Proposition 8 celebrate outside the 9th U.S. Circuit Court of Appeals after a three-judge panel ruled that the measure violates the civil rights of gays and lesbians. Credit: Justin Sullivan / Getty Images