Why The Supreme Court Might Not Bother With Prop 8

Jim Burroway

February 7th, 2012

One of the more remarkable features of the Ninth Circuit Court of Appeals’ ruling on Prop 8 is the very carefully crafted narrowness of the decision. It didn’t find a broad right to marry, and it didn’t find marriage bans unconstitutional. It didn’t even address what level of legal scrutiny applies to LGBT people as a class.

What it did find unconstitutional was very specific: that because California already had an almost-everything-but-marriage Domestic Partnership law to fall back on, the only thing Prop 8 did was disenfranchise same sex couples from the word “marriage” itself, and all of the social benefits and meanings that word holds.

This situation applies only to California, and has no bearing whatsoever in any other court case anywhere else. Judges working other cases are very unlikely to find anything in this ruling which applies to their cases. And when you think about it, that statement can apply to Supreme Court judges as well. Unless they’re just itching for controversy, it would be very easy for them to point out that there are no burning questions of national importance which require their attention. This decision appears tailor-made to allow the Supreme Court to duck this case altogether.

Sir Andrew

February 7th, 2012

You are correct. When this finally lands in the Supreme Court’s lap, they will likely decline it, saying that it does not raise a federal question. Similarly, this case is the wrong case to allow them to deal with the substantive issues, and the gay marriage issue itself is not ripe for review.

All that will happen now is that the proponents will try to drag out the various appeals (9th circuit en banc and then SCOUTUS) as long s they can. They know they’ve lost this fight, but are eager to make gays suffer as long as they can. You can just imagine them in their boardroom giggling like 7th grade school girls as they plan each step.

I don’t believe in karma, but this is one time when I truly wish it were a real force in nature. Maggie and the others deserve to suffer for the pain they’re bringing to the lives of thousands of gay and lesbian families.

Bruce in VA

February 7th, 2012

While the idea of the Supreme Court “dicking” a case makes me giggle, I think you probably meant they could “duck” the case.

Jim Burroway

February 7th, 2012

Yup. That’s what happens when you try to tap out a quick post on your iPhone while standing in line at a Subway.

Ben In Oakland

February 7th, 2012

I think you were right the first time.


February 7th, 2012

It is probably just as well that the Roberts-led Court not rule on Prop-8, if the concerns I have heard are legitimate. On the other hand, this is the Court that determined corporations are people and that money is the same as speech, so I am not certain I would be surprised if they determined LGBTs are not people.

Chuck Anziulewicz

February 7th, 2012

It’s the FEDERAL government that has made marriage equality for Gay couples a federal issue. MOST of the legal benefits and protections of marriage (including tax law and Social Security) come from the federal government, and there’s no good argument for denying law-abiding, taxpaying Gay couples the same legal status and benefits that Straight couples have always taken for granted, as the 14th Amendment would appear to stipulate.

There’s also that pesky “Full Faith & Credit” clause, under which any Straight couple can fly off to Vegas for a drunken weekend, get hitched by an Elvis impersonator, and that marriage is automatically honored in all 50 states. But because of the Defense of Marriage Act (DOMA), a Gay couple legally married in Iowa becomes automatically UN-married as soon as they travel across state lines.

So the SCOTUS can decline an appeal of THIS particular case, but there will be plenty of others, and eventually the Justices will have to tackle the issue. You can’t have a patchwork of 50 different marriage laws for Gay couples.

Timothy Kincaid

February 7th, 2012

Another possibility, though not likely, is that the Proponents may not appeal. Their loss here is limited to California and they may not want to face off with Olson and Boies before the SCOTUS and risk a 50 state loss.

Priya Lynn

February 7th, 2012

Timothy, now that you mention it, I think that’s more likely than you suppose.


February 7th, 2012

I can’t imagine why the Prop 8 proponents wouldn’t want to appeal now. When are they going to get a better chance at winning at the Supreme Court? The DOMA cases aren’t going very well for them, and will only get worse now that military marriages are included in the question of federal recognition.

Today’s ruling is very narrow, but the Walker ruling was very broad. The SCOTUS would probably love to grab the case and rule on those broad issues. Especially while they still have a conservative majority on the court. Is the line-up going to better for them in two years? Three? Five? Of course not. It’s only going to get worse for them from now on.

I wouldn’t be at all surprised to hear that Antonin Scalia was racing from office to office in the Court building mumbling, “We must strike NOW!!!!”

Timothy Kincaid

February 7th, 2012

Priya Lynn,

Let’s just say that if they don’t appeal, I’ll be surprised but not shocked.

Timothy Kincaid

February 7th, 2012


They may be counting on a Republican win. Though I don’t see anyone but Romney winning the primary and I can’t imagine that he’s select far rightwingers.


February 7th, 2012

BobN: The broad aspects of Walker’s findings of law no longer carry any legal force (for all practical purposes, they’ve been replaced by the Ninth’s findings), so they wouldn’t actually be questions before the SCOTUS.

The SCOTUS is allowed to re-open issues of fact (they did so in Dale) but they seldom do. The SCOTUS would have to flout all the principles of judicial restraint in order to rule on anything but the very narrow issues raised by the Ninth’s decision.

Timothy (TRiG)

February 7th, 2012

Fred Clark points out that this win is actually good news for the anti-gay side:

It’s even good news for Prop 8 supporters, who are fuming and raving in response to the decision. But don’t worry too much about them — they enjoy fuming and raving. It’s kind of their hobby. This ruling neither picks their pocket nor breaks their leg. It doesn’t harm or inconvenience them in the least. But today’s ruling provides them another excuse to pretend they’re put-upon and persecuted, so right now they’re as close to being happy as they’re still capable of being.



February 7th, 2012

How could proponents risk a 50 state loss with the SCOTUS in this case? It is so narrowly defined, (some say intentionally), so as only to affect California. Can someone provide insight?


February 7th, 2012

What does NOM gain by appealing this case? Let’s say the SC takes it up and overturns Walker’s ruling. All this says is that a state can ban gay marriage.

However, NY passed gay marriage by public acclaim, not by the courts. CA could easily put 8 back on the ballot, and it would lose. Now CA and WA have gay marriage. Then MD, then NJ, then RI, then ME and NH. Every state with gay marriage leads to more acceptance. Already, 54% of Americans approve of gay marriage.

What if they lose? The SC could overturn DOMA and then it’s game over for NOM.

They’d be better off taking the defeat in CA and moving on, since marriage in CA is inevitable based on public opinion and a very pro-gay governor and legislature.

Timothy Kincaid

February 7th, 2012


As released today, it only impacts California. But take it to the Supremes and they will do whatever they like with it. They are not bound by Circuit Court decisions or limitations or really much of anything at all.

So going to SCOTUS is a risk.


February 7th, 2012

Actually, domestic partnerships in California are NOT equivelent to marriage. But, and this is important, where they differ is not the rights and priviledges but in the obligations that attach to domestic partners — they are far fewer and less constraining. Which is why the majority of domestic partners are not homosexuals but heterosexuals: they get the rights without the responsibilities.

Which would, of course, make the argument from the right harder. How does a conservative justify depriving people of the “right” to assume responsibilities? Talk about catch-22.


February 8th, 2012


I agree. None of this really matters if they appeal. It’s a timing issue.

If they appeal and drag this thing waaay out, then we win in Nov, done deal case closed, forever. If there is no appeal, we have gay marriage in 90 days.

Worst case senario, Cali has gay marriage in approx 270 days / nine months on Nov 4th via voter approved initiative. Best case senario, 90 days.

Whatever happens, there will be holiday weddings this year.

If I were on the NOM team, I’d put my bucks elsewhere. Cali is a steaming locomotive noone is going to stop.

Timothy Kincaid

February 8th, 2012


I believe you are mistaken. California law (not Federal) treats marriage and domestic partnership the same. And I believe that very few heterosexual couples have DP’s as I don’t think they can unless one member is over 62.

Perhaps you are thinking of PACS in France?

If you disagree, can you please provide a source? (if I’m wrong I want to have correct info)

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