Gay Marriages Will Continue in California -- For Now

Many may not know that there is a still a legal battle raging over the fate of Proposition 8, which banned gay marriage in California back in 2008. Last month, the U.S. Supreme Court ruled that Protect Marriage, the proponents of Prop 8, did not have legal standing to appeal their case to the Ninth Circuit Court of Appeals. As a result, the ruling by the trial court became the final word on the constitutionality of Prop 8. Judge Vaughn Walker had struck down Prop 8, finding that it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Translation: same-sex marriages could resume after a more than four-year ban.

So why isn't this the end of the story?

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Well, the couples who sued to declare Prop 8 unconstitutional hailed from two counties: Alameda and Los Angeles. Undeterred by losing at all three levels of the federal judicial system, Protect Marriage is now asking the California Supreme Court to find that Judge Walker's ruling only applied to the two counties. Put another way, they claim that Judge Walker's opinion does not apply statewide.

In a little noticed decision last week the California Supreme Court denied a request by Protect Marriage to halt gay marriages while it rules on Protect Marriage's claim as to the scope of Judge Walker's ruling. A ruling by the California Supreme Court is unlikely to come before August, at the earliest.

State Attorney General Kamala Harris has taken the lead, arguing that a ruling by the California Supreme Court in favor of Protect Marriage would essentially create an impermissible conflict with a federal court order. If the state's supreme court justices agree, Protect Marriage is likely to once again be on the losing side of a court battle.

About the Author

Jessica Levinson is an Associate Clinical Professor at Loyola Law School. She focuses on the intersection of law and government.
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