audio_analysisAfter the California Legislature legalized same-sex marriage in that state, voters passed Proposition 8, which amended the state constitution to ban such marriages. Proponents of same-sex marriage sued to overturn the ban.

The Ninth Circuit Court of Appeals issued a narrow ruling, deciding that once a fundamental right like the right to marry is granted, “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.” This holding draws directly from Justice Anthony Kennedy’s opinion in Romer v. Evans, in which the court ruled that laws motivated by animus toward a particular group violate the Constitution.

Opponents of same-sex marriage appealed to the Supreme Court. In the meantime, the 9th Circuit “stayed” its ruling. That means the marriages of same sex couples who married before Proposition 8 became law remain legally valid, but no new same-sex marriages can be performed until and unless the Supreme Court overturns Proposition 8.

The Court has several options.

  • It could simply reinstate the ban on same-sex marriage on California.
  • It could uphold the Ninth Circuit decision and issue a ruling that applies only to California
  • It could rule that states which already have legalized same-sex marriage cannot take it away.
  • It could rule that the eight states which already have given same-sex couples all or almost all rights and benefits of marriage cannot deny them marriage itself.
  • It could legalize same-sex marriage nationwide.

Or the Court could decide that the opponents of same-sex marriage lacked “standing” – that is, they did not have the right to appeal the 9th Circuit decision. That would leave the 9th Circuit decision in effect.