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Monday, February 20, 2012

Prop. 8 Might Not Go Before the Supreme Court

Posted By on Mon, Feb 20, 2012 at 3:20 PM

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Earlier this month, the debate over same-sex marriage in California continued what some have speculated is an inexorable march to the U.S. Supreme Court, when the U.S. Court of Appeals for the Ninth Circuit upheld a decision striking down Proposition 8, the state's gay-marriage ban.

Yet a story published today in the New York Times questions whether the Prop. 8 litigation is really destined for the climactic showdown before the supremes many of us have expected -- and quotes some gay-rights advocates who think avoiding such a showdown might not be such a bad thing.

The key to this analysis by Times legal correspondent Adam Liptak lies in the majority opinion authored by famously liberal Judge Stephen Reinhardt for the Ninth Circuit. (A three-judge panel heard the case, with one conservative justice, N. Randy Smith, offering a somewhat puzzling dissent.)

The lawyers for Prop. 8's opponents, Theodore B. Olson and David Boies, were essentially asking the judges to rule that the U.S. Constitution ensures citizens the right to marry others of the same sex. Instead, Reinhardt opined that Prop. 8, which was passed as a ballot initiative in 2008, overreached in depriving a minority group of its rights.

Liptak reports:

Many gay rights advocates breathed a sigh of relief. They had long been wary of the Proposition 8 suit, preferring a state-by-state litigation and lobbying strategy over betting the farm on a case likely to end up in the United States Supreme Court. Some said they hoped the justices would now decline to hear an idiosyncratic case affecting a single state.

"I've always thought that the smart thing to do is to win this case for California and to keep this case out of the Supreme Court," said Nan Hunter, a law professor at Georgetown. "In this court at this time, it will be a very tough to sell a challenge" to the roughly 40 states that prohibit same-sex marriage altogether."
Of course, a broad ruling from the U.S. Supreme Court affirming that all 50 states must allow gays and lesbians to marry would be the ultimate prize for gay-rights advocates in the Prop. 8 battle. But a day in court before the supremes carries the risk that the conservative-leaning court could deliver same-sex marriage supporters an equally broad defeat.

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