Prop 8 Ruling: Is the Supreme Court Next?

The federal appeals court ruling that Proposition 8 is unconstitutional was hailed as a monumentally important victory by the organization of entertainment and political activists who are spearheading the effort to overturn California’s ban on same-sex marriage — and perhaps legalize it throughout the country.

The question is what the next step will be.

Proponents of Prop 8 could ask that the case be reheard by the entire 9th Circuit Court of Appeals. A judicial panel of that court ruled 2-1 that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California,” in the words of the author of the opinion, Judge Stephen Reinhardt.

The proponents also could ask the Supreme Court to take the case, keying it up for a showdown that would have far reaching ramifications.

As of now, marriages will not immediately resume given that a stay pending litigation. There’s expectation that proponents will seek another stay as they appeal. Ted Olson, attorney for the two couples seeking to overturn Prop 8, said that they would likely oppose such an effort.

And while there is expectation that the case would go all the way to the Supreme Court, doubts were raised on whether they would take the case.

Appearing at a press conference in downtown Los Angeles at the former St. Vibiana’s Cathedral, now an event space, Olson said that it “would be very hard of the Supreme Court to ignore” the case. But another attorney on the case, Ted Boutrous, also noted that the appellate decision narrowly relied on past precedent by the high court, including a decision overturning a Colorado initiative that stripped away discrimination protections for gays and lesbians.

The way that the 9th Circuit decision was written, Boutrous said, “makes it much harder to get Supreme Court review.”

The appellate court also was clear that it was not deciding on whether the constitution guaranteed a right to marriage for same-sex couples, but was ruling on the circumstances of the case itself. Two California couples who sought marriage licenses after Prop 8 was passed sued the state in May, 2009, saying it violated their constitutional rights to equal protection and due process.

The 9th Circuit ruling stated, “Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.”

The case is being funded and directed by the American Foundation for Equal Rights, led by political consultant Chad Griffin. Griffin and his client, Rob Reiner spearheaded the case, choosing Olson and pairing him up with an unlikely partner, David Boies. Olson, a conservative, represented the George W. Bush campaign in the 2000 election challenge, while Boies represented Al Gore.

“Being treated with the same respect and dignity as everyone else. That is all we are talking about today,” Griffin said at the press conference, flanked by the plaintiffs, members of their families and in front of a backdrop of American flags.

Reiner said that the ruling was a “big piece of the puzzle.”

“As Ted Olson said, this is a very, very big step in the big goal of achieving marriage equality for people around the country,” Reiner said.

Dustin Lance Black, a board member of the foundation, noted the shift in public opinion toward support of same-sex marriage since the case started.

The effect, he said, “is you get the feeling the country has embraced you.”

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