Legal scholars say the U.S. Supreme Court may have to decide whether federal court has the power to overturn a state protection of traditional marriage in the wake of the controversial ruling negating California's Proposition 8.
But it is not clear whether this is the case that either protectors or challengers to traditional marriage want the high court to decide. American Center for Law and Justice attorney and legal scholar David French says he is somewhat perplexed by last Tuesday's ruling by the 9th Circuit Appeals Court and questions how the Supreme Court would handle the case.
"They certainly tried to make the ruling as narrow as possible," French told The Christian Post. "Still, I believe they made a mistake in the sense that when talking about marriage – they discussed the importance of marriage as an institution. Yet they gave no legitimate reason for marriage when advancing the state's interest. I think it only complicates the issue."
There is nothing in the U.S. Constitution that allows or prevents same-sex couples to marry. The primary law on the federal books is the controversial 1996 Defense of Marriage Act signed by former President Bill Clinton stipulating that marriage is between a man and a woman. President Obama has refused to defend the law in court.
What legal scholars are paying close attention to is the manner in which 9th Circuit Justice Stephen Reinhardt, author of the 2-1 majority opinion, worded his "narrow" decision upholding a federal judge's finding that Proposition 8 violates the equal protection clause of the U.S. Constitution. Upholding the 9th Circuit's federal remedy would be a clear overriding of the California constitution, possibly a sweeping one, and scholars are trying to gauge how the Supreme Court will react to this.
Also complicating the issue is whether the ruling applies only to California, not the other western states under the jurisdiction of the 9th Circuit. Not all agree with Reinhardt, who asserts in his opinion that if the U.S. Supreme Court were to uphold the ruling, it would only allow same-sex marriages in California and would not impact any other state.
French says that Reinhardt went out of his way on several occasions not to address if gays and lesbians have a fundamental right to marry. However, what Reinhardt did focus on was a 1996 Supreme Court ruling, Romer v. Evans, that struck down a voter approved Colorado law that prohibited local governments from enacting measures to protect the state's homosexual citizens.
In the 1996 Colorado case, Supreme Court Justice Anthony Kennedy, who is seen as the swing vote in cases like this, wrote that the Colorado amendment "withdraws from homosexuals, but no others, specific legal protection."
Reinhardt, in making his case, says Proposition 8 – which defines marriage as between a man and a woman and was passed by a majority of California voters in 2008 – also unfairly singles out California's homosexual residents.
As the case sits today, there are three options available to the conservative coalition who brought it to court.
The first option is to go back to the 9th Circuit and request that the entire panel of 11 judges examine the ruling "en banc." This option isn't widely discussed because proponents of traditional marriage have little confidence the full court would overturn the three-judge panel.
However, Dr. Kevin Lewis, professor of theology and law at Biola University believes the best route would be to request a review from the entire 9th Circuit panel and not go to the Supreme Court.
"You've got to be extremely careful about requesting the Supreme Court review this case," Lewis told The Christian Post. "If Justice Kennedy feels sympathetic toward the case and how narrowly it is written, then same-sex marriage could become the law of the land. In other words, you've got to be careful what you ask for if you're not prepared for the wrong answer."
The second option, and the one most often discussed by scholars on both sides, is to appeal directly to the U.S. Supreme Court. Some say that Reinhardt's decision was purposely written so narrow as to dissuade the Supreme Court from weighing in but opponents of the ruling are optimistic the court will accept the case.
The third and final option would be to do nothing and let the ruling stand, although hardly anyone thinks this will happen.
Alliance Defense Fund Senior Counsel Brian Raum said the group has not yet decided what to do but will make a decision in "due time." Federal law allows them 90 days to appeal the decision to a higher court.
Speaking last week on behalf of the conservative coalition who brought the case, attorney Andy Pugno indicated he would like to see the case move to the high court.
"The 9th Circuit's decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn't come as a surprise, given the history of the 9th Circuit, which is often overturned," said Pugno, in a fundraising letter to Proposition 8 supporters. "Ever since the beginning of this case, we've known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court."
In the meantime, same-sex couples will still find it difficult to marry in California in the near term. The 9th Circuit panel's ruling will not take effect until after the deadline passes in two weeks, and if the appeal is for an en banc ruling the effective will be delayed further, likely to the fall.
"The ground is only firm when you get a ruling from the US Supreme Court," University of California, Berkeley law professor and legal scholar Jesse Choper told CP.