Prop 8 Decision Reads Like a Letter to Justice Kennedy

Bob Sodervick demonstrates outside of the Ninth U.S. Circuit Court of Appeals on February 7 in San Francisco before a three-judge panel made its ruling on Proposition 8 |Photo: Justin Sullivan/Getty Images

The big legal news of this week was the Ninth Circuit ruling in the Proposition 8 case. The appeals court ruled, on narrow grounds, that the passage of Proposition 8, which in 2008 banned same-sex marriage in California, is invalid under the U.S Constitution.

But the opinion is as important for what it didn't say, as for what it did. In a 2-to-1 decision, the majority of the three-judge panel steered clear of broader issues surrounding gay marriage. The court specifically noted that it need not, and would not, rule on whether marriage is a fundamental right. Instead, the court's analysis focused on a narrower question that is likely to arise infrequently at best.

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Back in 2008 the California Supreme Court found that gay marriage is a fundamental right, and struck down a statute defining marriage as only between a man and a woman as invalid under the state constitution. Later that year voters passed Proposition 8, a constitutional amendment defining marriage as between a man and a woman, essentially writing the state supreme court's decision out of the constitution.

The Ninth Circuit therefore ruled on the narrow grounds on whether a referendum could take away a right that was already extended to same-sex couples. This comparatively tempered approach may turn out to be a very savvy strategic decision.

When and if the Supreme Court of the United States hears the case, they need not tackle the larger, more controversial issue of whether there is a fundamental right to marry. If the Supreme Court does hear the case it is likely that a California native, Justice Anthony Kennedy, will be the swing vote. Indeed the majority opinion of the Ninth Circuit reads like a letter to Justice Kennedy and cites liberally to his past decisions.

Meanwhile, because the court stayed their decision, same-sex couples in California must still wait to see if they can marry or not.

Jessica Levinson writes about the intersection of law and government in Los Angeles every week. She is a Visiting Professor at Loyola Law School. Read more of her posts here.

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