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Proposition 8 'May Not Reach Supreme Court'

Publication Date: 
February 08, 2012
The Guardian
Julian Rayfield

Professor Jane Schacter spoke with Julian Rayfield of the Guardian about the specifics of the Prop 8 ruling and why the decision may only have implications for California.

Now that a Ninth Circuit panel has ruled that California's ban on gay marriage is unconstitutional, it seems inevitable that the ruling on Proposition 8 will eventually be appealed to the Supreme Court. But whether the Supreme Court agrees to hear it is another story. At this point, proponents of Prop 8 have fourteen days to decide whether to petition for a rehearing. If granted, an eleven-judge panel of the Ninth Circuit will hear the case, which could take another six months to a year. If the initiative's supporters choose to go straight to the Supreme Court, four of the nine justices would have to vote in favor of hearing the case for it to be taken up. ... Professor Jane Schacter at Stanford Law School told TPM that "the big question" is whether or not the Supreme Court will agree to hear the case, and though at this point it's "guesswork," the narrowness of the opinion makes it less likely that they will. "It's much more grounded in the specifics of the California ruling," she said. For one thing, Schacter said, the Ninth Circuit's opinion emphasizes that the right of same-sex couples to marry had been first granted, then eliminated. For another, unlike most other states, California already essentially granted all of the rights of marriage to same-sex couples, just under a different name than "marriage." This means that Prop 8 was simply about the designation of same-sex unions as "marriages." "Those two things are somewhat peculiar to California," Schacter said, meaning that the opinion doesn't necessarily provide the basis for a nationally recognized right for same-sex couples to marry. "Because of that, the Supreme Court may feel the stakes are limited, and it's not as necessary for them to get involved," she said. On the other hand, because this case is very high-profile and California is an influential state that "tends to set trends," the Supreme Court "may decide to take it," Schacter added. And should the Court decide to take it, there is reason to believe that the language of the opinion will hold particular appeal to one specific Justice. "This decision was written by Judge Reinhardt more or less for Justice Kennedy," Schacter said.