Diane Robertson
On June 6, the ninth circuit court of appeals refused to retake the Proposition 8 case (Perry vs Brown). The last step in the appeals process for California’s Proposition 8 will be an appeal to the Supreme Court of the United States. Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers “absolutely” would take the case to the high court. Most people believe the Supreme Court will hear the case.
This now raises a lot of questions for everyone. If the Supreme Court hears the case, will they rule like the other courts and only apply their ruling to California? In the February 2012 ruling, The ninth circuit court stated, “The people may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
Using this language the Supreme Court could go one of two ways. They could make a decision affecting only California by striking down Proposition 8 because the amendment banned a right the people of California already had, or they could broaden the ruling to include all of the states with amendments banning gay marriage. In other words, the Supreme Court could keep the case local for California only, or they could make a sweeping ruling similar to the 1973 ruling of Roe verses Wade which ended every state’s laws against abortion. A ruling like that would legalize gay marriage throughout the United States.
Another question people may have is how does the Supreme Court lean? Would the Supreme Court likely legalize gay marriage or would they uphold traditional marriage. A good way to answer this question is to look at the justices of the Supreme Court.
Justices do not represent or receive official endorsements from political parties. However, from watching how justices vote on many cases, each justice is informally categorized (see “Justice Leanings”) in legal and political circles as being judicial conservatives, moderates, or liberals. Currently, Supreme Court Chief Justice Roberts, Justices Scalia, Thomas, and Alito are considered judicial conservatives, while Justices Ginsburg, Breyer, Sotomayer, and Kagan are considered judicial liberals. Justice Anthony Kennedy is the moderate and considered the swing vote.
It is almost certain that on social issues case such as the Perry vs Brown case, the court will be split with the conservative justices voting in favor of Proposition 8 and the liberal judges voting against it. It is unclear how Justice Kennedy would vote in this matter.
A final question people may have is what about DOMA? Will DOMA head to the Supreme Court at the same time as Proposition 8? Would the Supreme Court hear both cases? If the appeals process with DOMA goes quickly or is not heard en banc, then yes, DOMA and Proposition 8 could arrive at the Supreme Court at the same time.
According to Steve Sanders from the Huffington Post, “the justices may think it more important to resolve DOMA’s constitutionality first, because DOMA is a federal statute, and because Judge Boudin, a Republican-appointed judge with a superior reputation for intellect and judgment, acknowledged explicitly in his opinion that the Supreme Court should have the last word.”
We will not know the beginning of the answers to these questions before the fall. This fall, we will know what cases the Supreme Court will hear. If the Supreme Court gives hearing to either Proposition 8 or DOMA, then by next June, we should have a ruling on “gay marriage” in America.