Marriage equality could be heading to the Supreme Court.
The Ninth Circuit Court of Appeals announced on Tuesday that it has denied en banc rehearing in Perry v. Brown, the case challenging the constitutionality of California Proposition 8. The ballot initiative, approved by California voters in 2008, banned same-sex marriage in the Golden State, setting off years of litigation.
And the litigation isn't over yet.
This week’s denial means that the Supreme Court is the only court that can revive Prop 8. To do so, the Court will be forced to examine whether same-sex marriage bans are unconstitutional.
Prop 8 supporters have vowed to bring their case to the Supreme Court, reports the Mercury News, but will the Supreme Court agree to hear it?
If the Nine aren’t ready to consider Prop 8, they may be able to thank the appellate panel for giving them an out. In February, the Ninth Circuit panel ruled that Prop 8 was unconstitutional in the context of the Supreme Court’s Romer v. Evans decision. The ruling only applies to California because California is the only state within the Ninth Circuit Court of Appeals’ jurisdiction that has granted, and then rescinded, marriage equality.
(That facts behind Perry v. Brown are substantially similar to the facts behind Romer v. Evans, which involved a Colorado initiative that voided a series of local ordinances and state laws to protected gays and lesbians from discrimination based on sexual orientation, reports the Los Angeles Times.)
The Court could deny certiorari because the Perry v. Brown ruling was narrowly tailored within a settled area of law, or it could take on the bigger issue.
Ninth Circuit Court of Appeals Judge Stephen Reinhardt, writing for the 2-1 majority in Perry v. Brown, noted that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” The First Circuit Court of Appeals reached a similar conclusion in last week’s decision finding the Defense of Marriage Act unconstitutional.
The appellate courts are willing to take a stand on the constitutionality of laws that deny rights to same-sex couples. Do you think the Supreme Court will follow suit?
- Perry v. Brown (FindLaw’s CaseLaw)
- Romer v. Evans (FindLaw’s CaseLaw)
- Perry v. Brown: What the California Prop 8 Ruling Means for Gay Couples (FindLaw’s Ninth Circuit Blog)