Prop 8 Shot Down, Gay Marriage Will Head to Supreme Court in 2013

This morning, the Ninth Circuit issued a final denial for a rehearing en banc in the case concerning California’s Proposition 8 and its constitutionality, upholding its earlier ruling. The decision declaring the law unconstitutional was handed down in February of this year. With this denial of a request for a re-hearing, the only recourse remaining to the law’s supporters is to appeal to the United States Supreme Court.

Re-hearing’s en banc are rare things, particularly for a court as large as the Ninth Circuit. Normally, decisions at the federal appellate level are handed down by random three judge panels assembled out of the Circuit’s judges (the Ninth, being the largest Circuit, has 26 active judges). All parties have the right to request a re-hearing by the full court if they feel their panel came to the wrong conclusion. Such a re-hearing en banc is rarely granted. Due to the Ninth Circuit’s unique size, a re-hearing goes before 11 randomly selected judges rather than the full 26 judge court, something many legal critics have called arbitrary and not reflective of the court’s actual views.

The decision declaring Prop 8 unconstitutional was decided 2-1 in an opinion that concluded that the law served no other purpose than to “lessen the status and human dignity of gays and lesbians.”

There is no question that the law’s supporters will now seek review before the Supreme Court but the question of whether the Justices decide to hear remains to be seen. Coupled with last week’s decision by the First Circuit in striking down the Defense of Marriage Act (DOMA) as unconstitutional, the issue of gay marriage appears bound to end up before the nation’s highest Court sooner rather than later, but what form it will take is still anyone’s guess.

The decision on which case to take, or whether to take any, will hinge on a great deal of internal politics within the Court. A case seeking review needs the vote of four Justices at conference to be slated for review by the full Court. Different cases addressing the same subject matter can have vastly different outcomes and impacts depending on the specific facts, law, and procedural history of the case.

If either wing of the Court, conservative or liberal, wishes to grant review on the question of gay marriage they can easily do so. The trickier question is whether either side is comfortable with the risk of failing to secure Justice Anthony Kennedy’s swing vote for their opinion.

Justice Kennedy famously sided with the liberals on the Court in 2003 in the last major case concerning homosexuality to reach the Supreme Court, Lawrence v. Texas. There, Kennedy authored the opinion that declared a Texas law criminalizing homosexual intercourse as unconstitutional, stating that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” The case explicitly overturned an earlier decision, Bowers v. Hardwick, which had upheld a nearly identical Georgia law in 1986.

With DOMA expected to get another drubbing courtesy of the Ninth Circuit in the fall of this year, the Supreme Court’s review of gay marriage may be inevitable in 2013. However, the question of how the Justices will decide and how wide-reaching their decision will be remains up in the air.