Prop 8 Decision Reads Like a Letter to Justice Kennedy

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.

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.