After historic ruling, what’s next for Prop. 8 case?

Nearly four years after Proposition 8 put a halt to same-sex marriages in California, gay wedding bells could ring again in as little as three weeks. On Feb. 7, the Federal Ninth Circuit Court of Appeals in San Francisco ruled that the 2008 voter-enacted ban is unconstitutional.

But don’t mark your calendars yet. The first federal ruling on Prop. 8 – by district court judge Vaughn Walker in 2010 – already found the law unconstitutional, but with his decision Walker instituted a temporary block on same-sex marriages so that Prop. 8 advocates could appeal. Now that a higher court has upheld Walker’s ruling, proponents have 14 days to file yet another appeal, which would automatically extend the block.

If Protect Marriage doesn’t appeal, same-sex marriages can resume seven days after the window expires, which would set them  to start again Feb. 28. But all observers expect Prop. 8 proponents to fight on.

So California’s gay couples must turn their hopes back to attorneys at the American Federation for Equal Rights – the group that won the historic Feb. 7 decision – who also vow to keep fighting. They plan to ask the court to overrule the automatic extension and allow same-sex couples to marry immediately despite ongoing appeals.

During a media conference call, AFER’s attorneys said that same-sex couples face more irreparable harm the longer they are kept waiting – an argument boosted by the fact that now two federal court decisions have favored same-sex marriage.

The Feb. 7 ruling was a 2-1 vote by a panel of three judges, with the winning faction agreeing with Judge Walker’s ruling that Prop. 8 violates U.S. Constitution’s Equal Protection clause. The next appeal will bring the case to a larger panel in the Ninth Circuit Court or directly to the U.S. Supreme Court.

Considering the strong language judge Stephen Reinheardt included in his written Feb. 7 decision, there’s reason for marriage equality advocates to be optimistic about being heard again in the Ninth Circuit Court.

“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” Reinheardt wrote in the ruling.

The panel also found that Walker’s sexual orientation did not indicate bias when Walker – who is gay – ruled in favor of marriage equality. But all three panel judges confirmed that Proposition 8 supporters have legal standing to at least argue in court for the continuation of the law.

California voters passed Prop. 8 in 2008 with 52 percent of votes, five months after same-sex marriages began in the state. That made California the first state ever to revoke the right to marry from same-sex couples who had already won it, and that fact is what the Feb. 7 ruling was focused on; while language in 89-page majority opinion indicated same-sex couples have a right to wed, Judge Reinhardt wrote the court only needed to go so far as to say the reasons Prop. 8 sought to eliminate previously-existing rights in California were unconstitutional.

For that reason the Feb. 7 ruling applies only to Californians – not to same-sex couples in other states in the 9th Circuit’s jurisdiction, such as Nevada, Oregon, Washington, Arizona and Hawaii, where same-sex marriage is also currently banned.

The narrow scope of the decision is likely to affect how the case continues. Prop. 8 supporters say they’ll appeal as long as they can – even to the Supreme Court.

If that happens, the Supreme Court has the opportunity to decide not to hear the case, upholding the Ninth Circuit’s ruling. That would mean same-sex marriages remain legal in California but not elsewhere in the U.S.

AFER attorney David Boies said given how well-reasoned the Feb. 7 ruling is, the Supreme Court may decide to accept the decision. The Court might also prefer to wait for other appeals courts in the country to hear-same sex marriage cases, he said.

If the Supreme Court does decide to take the case, it could strike the lower courts’ decisions and uphold Prop. 8. It could also declare all laws against same-sex marriage unconstitutional with a sweeping decision on the scope of Loving v. Virginia which in 1967 struck all states’ laws banning interracial marriage.

But marriage equality activists are careful to point out it will take months and likely years for case to advance that far.