Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger group of Ninth Circuit judges, called an "en banc" panel, to rehear the case.
After this latest setback, Prop 8 supporters, who have now lost at two levels of the federal judiciary, said they would "absolutely" ask the Supreme Court to review the case.
When the Ninth Circuit issued its ruling on the case in February, UC Davis law professor Vik Amar told KQED's Scott Shafer that he thought the opinion was written as narrowly as possible in order to ward off the Supreme Court from taking -- and perhaps overturning -- the case.
Yesterday, after the Ninth Circuit announced it would not take up the case again, KQED's Rachael Myrow checked in with Professor Amar to get his reading of the tea leaves in terms of whether the Supreme Court will take up the matter of Proposition 8. Edited transcript of that interview:
RACHAEL MYROW:Recap the narrow ruling that the Ninth Circuit issued in February.
VIK AMAR: They tried to decide the case on very California-specific grounds, so the Supreme Court wouldn't feel it had to intervene and take review. If the Ninth Circuit had held that not only had Prop 8 violated the federal constitution, but that every state's ban on same-sex marriage in the western U.S. also violated the federal constitution, than I think the U.S. Supreme Court would have had no choice but to take review.
There's still a good chance the Supreme Court will step in, but at least by making the ruling so California-specific they offer the Supreme Court an excuse not to step in if it wants to wait.
RACHAEL MYROW: A lot of people are talking as if it's a given that the Supreme Court will take up the case. But might it leave it alone?
VIK AMAR: It might. But the California-specific reasoning that Judge Reinhardt employed is not convincing to a lot of people. So there's a good chance the Supreme Court will still want to take the case.
But complicating things more now is the decision by the First Circuit Court of Appeals in the Defense of Marriage case last week. The DOMA case raises narrower questions than the Prop 8 case does. So they may want to look at the DOMA issues and wait a year or more before they take on the more momentous question of whether states have to recognize same-sex marriage, if they want to take up the question of gay marriage a little more incrementally.
Because in the First Circuit's DOMA ruling, the question wasn't whether states have to recognize same sex marriage, it was if a state recognizes same sex marriage, should the federal government have to abide by that and allow that couple to be considered married for federal purposes as well? The court may want to look at that narrower issue before it confronts the bigger issue presented by Prop 8 and other bans on same-sex marriage like it.
Sometimes the Supreme Court will sit on a request for review for awhile until it decides another case that may be relevant. So if the Supreme Court decides it wants to take the DOMA case first, it could grant review in that case and let the Prop 8 case sit.
One more thing that's important – we've been focusing on the merits of the Prop 8 case, whether the California constitutional ban on same-sex marriage violates the 14th Amendment. But there's still that looming question of whether the defenders of Prop 8 had standing to defend the law in the first place. The Supreme Court could dispose of the Prop 8 case if it wanted to on standing grounds without ever ruling on the merits.
RACHAEL MYROW: How likely is that?
VIK AMAR: I think it's not unlikely. In 1996 the Supreme Court unanimously wrote an opinion that slapped the Ninth Circuit down for recognizing initiative-sponsored standing in Arizona. This case is arguably different than the Arizona case, but there's a lot of skepticism on the part of U.S. Supreme Court justices about whether unelected individuals should easily be able to step into the shoes of voters and defend enactments in federal court, especially when the people who passed Prop 8, the voters, may not have really known who the sponsors of Prop 8 were who were going to be their legal representatives.
I think the standing question is a really complex one and I don't really think the Ninth circuit and the California Supreme Court did it justice in deciding that the sponsors really did have standing.