February 7, 2012 | 11:46 am
Posted by Tamara Shayne Kagel
The Ninth Circuit Court of Appeals has just affirmed a lower federal court decision that determined that Prop 8, which bans gay marriage, is unconstitutional. While this is a great step toward creating marriage equality for all, it also makes me a little nervous. There is only one place this case can go now….the Supreme Court. And a decision there is going to be huge. It could be a few years before the Supreme Court actually hears the case as appeals take a while and it’s possible that the make-up of the court will change by then, but unfortunately I don’t see Thomas or Scalia retiring quickly enough to allow the composition of the court to change in time for this case. The Supreme Court could chose to not hear the case, which means the decision today will stand for the 9th Circuit, but it’s also unlikely given the current political climate.
This case was only decided 2-1 and I took a peak atthe dissenting judge’s opinion. It foreshadows the arguments that will likely be made at the Supreme Court if it gets there and they are better than I expected. The decision focuses on the fact that a state should be allowed to define marriage however it wants and he offers a lot of precedent to support this. The majority concedes this fact but argues that no state can define marriage in a way that violates a person’s constitutional rights as defined by the 14th Amendment. A decision at the Supreme Court will likely also be a 5-4 decision with Kennedy now the only hope of a swing vote. It’s hard to believe that so many millions of American lives will be touched by the words of one man, but as of now, that’s probably what it’s going to come down to. Unfortunately, there’s nothing to do now but wait. And of course pray for early retirement. In the meantime, we celebrate.
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