Will There be Same-Sex Marriage in California Next Month?

By Scott Shafer

The U.S. Supreme Court could decide by September 25 whether it will review this year's 9th Circuit Court of Appeals decision striking down California's Proposition 8, the ban on same-sex marriage.

On that day, the justices will announce which cases got the necessary four votes to "grant cert," meaning get a full review by the high court in its 2012/13 session. If the court grants cert to the Proposition 8 case, an oral argument will be scheduled, probably for some time in early 2013, with a decision to come by the end of June.

The following Monday, October 1, the court will announce which cases have been denied cert. If the Proposition 8 case is rejected by the justices, it means the lower court decision holds, and same-sex marriages will resume once the 9th Circuit Court of Appeals mandates it -- likely within a week.

There is a chance the justices will delay a decision on the case until later in the session.

Supporters of same-sex marriage are asking the Supreme Court to deny the case a hearing, and have written in their briefs that the decision really only applies to California and is not a federal issue.

"The opponents of Proposition 8 take a pretty interesting position in the petition,"says U.C. Hastings Law professor Rory Little. "They say this is a really important issue. It's a really well-developed issue. We had a trial, and we've got great facts. But you should deny it because it's narrowly decided in California. That's almost a schizophrenic cert petition, or cert opposition."

Some experts suggest that the Supreme Court will grant cert to the DOMA cases but deny it for Proposition 8. However, Little sees it differently, noting that the strengths of this same-sex marriage suit could be attractive to the Court.

"You may not have another opportunity to address such a central issue with such talented advocates on all sides. The court likes that," Little says. "They like big issues to be represented by talented and experienced Supreme Court advocates...And if you grant in both cases you can really say something large. You can really attempt to answer the big question, which is 'Does the Constitution prohibit the banning of same-sex marriage or does the Constitution permit it?'"

If Proposition 8 is ultimately upheld by the high court, California voters could still restore the right to same-sex marriage in a future ballot measure. There would likely be enormous pressure from gay rights groups to place that on the ballot in 2014.