Prop 8 supporters will cry to the SCOTUS within 90 days...

[Fearless]

SAN FRANCISCO (AP) — A federal appeals court refused Tuesday to reconsider a landmark ruling by two of its member judges that struck down California's ban on same-sex marriages.

...

Gay marriage opponents said at the time they would go to the high court if the appeals court declined to rehear the case. They have 90 days to do so.

...

The 9th Circuit said a majority of its 26 actively serving judges had voted not to revisit a three-judge panel's 2-1 decision declaring the voter-approved ban to be a violation of the civil rights of gays and lesbians in California.

The 9th Circuit does not often agree to rehear cases, a procedure known as en banc review. Federal court rules reserve the practice for appeals that involve "a question of exceptional importance" or if the original decision appears to conflict with Supreme Court or 9th Circuit precedents.


http://www.seattlepi.com/news/article/Court-rejects-second-look-at-CA-gay-marriage-ban-3610586.php

----------------------

So it's going to come down to this huh. Prop 8 funders want the SCOTUS to take up their case since the 9th Circuit Court doesn't agree to revisit their decision rejecting Prop 8 as unconstitutional.

1. The SCOTUS could reject to hear the case for any reason. They don't even need to give a real reason.

2. If the SCOTUS chooses to pick up the case. They can rule in two ways...

2A. The SCOTUS could rule solely on the Prop 8 case... That is they can restrict their ruling to overturning/affirming the 9th Circuit Court ruling that Prop 8 is unconstitutional because it removes a right from people who explicitly had that right. This ruling would ONLY hold with the Prop 8 decision and would NOT impact any other marriage equality movement/laws/constitutional bans. To affirm the decision, they would likely cite the 9th Circuit ruling and/or mention states rights.

2B. The SCOTUS could rule on the federal issue of marriage equality and issue a ruling encompassing ALL states. They could take the 9th Circuit decision in combination with the decision in the 1st Circuit Court (out of Boston) a few days ago saying that it was unconstitutional to reject federal benefits (SSI) to same-sex couples and rule that same-sex marriage bans are unconstitutional on a national level. If this happens, it is likely to be a 5-4 vote with Anthony Kennedy being the deciding factor. He has, in the past, suggested that gay couples deserve rights, but has not discussed the larger issue. OR, the SCOTUS could rule against the constitutional right of Americans to marry who they wish. Again Kennedy would be the deciding vote in a 5-4 decision. If this happened, that would mean that they rule that there is no (current) constitutional protection for same-sex couples. An amendment would change that. Equally, this decision would invalidate ALL state rulings affirming same-sex marriage rights. (Which is a very contentious precedent to be making.)

Time will tell...

[William769]

1. They will be singing this for awhile.

[beyurslf]

2. I think the SCOTUS will either rule on the full issue of marriage equality

or will pass on this one. Why take up such a contentious issue that they know will reach them only to issue a narrow ruling that will still leave the bigger case for them to decide later?

Also, question: Why would a SCOTUS ruling that marriage equality is not federally protected invalidate marriages in states that have equality? Just because the court doesn't say KS has to offer gay people the right to marry doesn't mean NY isn't allowed to.

[Fearless]

3. Because federal law supercedes state law.

Think desegregation.

[Ms. Toad]

5. Not on this issue, actually.

The state courts which have decided that marriage is a constitutional right have decided it based on their state constitutions (which vary from state to state). None have decided it on the basis of the US Constitution.

While a state constitution cannot take away federal constitutional rights, it is free to grant more. So the decision suggested would mean that there is no federal constitutional same gender marriage right in any state. It would not invalidate the state constitutional right.

The Boston decision, if appealed, it would apply to all states - either state recognized marriages will be recognized under federal law for all states or for none.

The interesting piece could be what it does (if it addresses it) for couples whose marriage was legal in the state where created and where the couple lived for a while but the couple subsequently moved to a state where that marriage (which still exists) is not recognized. The normal federal analysis involves determining whether the creation was legal or not (so, for example, Ohio recognized common law marriages until the early 1990s. If a couple in 1985 created a common law marriage in Ohio, then moved to someplace that did not recognize it, that marriage would still be recognized by the Federal Government in the new state because the federal test typically relies on validity when created. It isn't clear what would happen if the federal non-recognition aspect of DOMA is upheld - but one of those Massachusetts couples later moves to Ohio.

[beyurslf]

7. With desegregation, the court said to states: "You can't do this"

and federal law trumped the state law. That is not the same as the court saying to states: "You don't have to do this.&quot ie: you are not required to offer gay people the right to marry). It is not saying that the state cannot do it, just that they don't have to.

[Amimnoch]

4. You are right, Kennedy is definitely the key, and I don't feel this is our case.

The case that just went before the federal appeals court in Boston is a much better bet for us.

I fully believe that case will be supported by Kennedy based on his history of votes and dissertations as a constitutional violation.

Once DOMA is gone, we need couples who get married in states that allow gay marriage to move to states that don't allow it, then challenge again. THAT will win us our right. Once DOMA is gone, and federal benefits are granted, but states start refusing to adhere to the recognized legal marriages, we will have the full case to force the states to lose their own discriminatory laws. At the very least states and businesses will HAVE to provide equal benefits to same-sex married couples, even if they were married in some other state.

As much as I am still bitter about Prop 8 passing in California, I really don't think this challenge is our best bet for gaining marriage equality, especially with Kennedy being the extremely likely deciding vote. The challenge is based on a state driven measure that was voted in my majority within the state. This will have extremely heavy sway with a man like Kennedy. If we lose this case, a very nasty judicial precident will be set, and it will set us back significantly. There is much to win as well, but frankly, I think we'll have a much better chance with Kennedy going the defeat DOMA route than we will trying to defeat Prop 8. Our best chance there is that the court refuses to hear the case. If they do hear it, we won't be in a very good position.

[RetiredTrotskyite]

6. We Aren't Being Given...

any choice since the bigot asshats want to take this to the SCOTUS. I agree the case in MA is much better but you work with what you are given.

[beyurslf]

8. I also don't think Kennedy will be keen to allow people to vote to take away

rights that were already given to people. That is part of the CA argument regarding the couples who married while it was legal and prop 8 took it away.

[Amimnoch]

9. Well, I will sit back and really hope you are correct.

I must have missed the information going out that those who were married prior to Prop 8 having their marriage revoked. I could swear that following the 08 election the word was that those married prior would maintain the validity of their marriage?

Kennedy did provide the deciding vote in Romer Vs. Evans to declare Colorado amendment 2 to be unconstitutional, so there is hope.

I do still think it's taking an awful gamble that he will support killing Prop 8. DOMA is a much more sure bet aligning with his voting history.

Personally, I think the best bet here would be for the SCOTUS not to hear the case at all, and allow Prop 8 to just disappear, and let the DOMA challenge come on through. Eliminating DOMA at this point would be the biggest step for us. If DOMA gets stricken down as unconstitutional in its entirety, then the suits can start the process to attack each and every state that has banned us once those states start refusing couples who are legally married in other states from having state rights or protections equal to the other out of state marriages in those states.

[pinto]

10. I agree it would be best for SCOTUS to decline consideration and leave the 9th decision as is.

DOMA's the larger game at hand.