With the Ninth Circuit ruling that Prop 8 is unconstitutional (potentially reinstating it in the most populous State in the country) California gay marriage ban struck down, appeals court cites equal rights, and with Washington State poised to pass same-sex marriage, Current status the population living in States where it is legal will more than double to more than a quarter of the United States' population. Adding in the States where civil unions or domestic partnerships are legal brings it to more than a third. Moreover, polling indicates that Gay Marriage Opponents [Are}Now in [the] Minority (Polls; FiveThirtyEight). With the Obama administration no longer defending DoMA; with Don't Ask, Don't Tell history, I believe we have finally reached the tipping point where marriage equality will become a reality in the United States. It may take some time, but I think it will become universal in my lifetime.

Moreover, I think there are good arguments that the Supreme Court will not take the 9th Circuit Appeal. Proposition 8 'may not reach Supreme Court'; Prop. 8: U.S. Supreme Court might not take gay-marriage case (a position with which I agree).

What say the masses?

As do I. I’m what is referred to as straight though I’ve never cared much for that label and I have always been perplexed by conservative’s insistence that we should never allow gays and lesbians to marry. After all America is suppose to be a country of freedoms, right? Must a marriage only be between a man and a woman? I say emphatically NO! As it has often been stated why should gays and lesbians not be allowed the same blessings and miseries of those marriages between a man and a woman (or should I say between a woman and a man)?

The arguments against marriage for all are so weak it has always been clear that it is about imposing Christian sharia upon each and every one of us. No abortions, no "gay marriage", public funding for religion, etc etc.

These people don't respect freedom only their contorted view of religion. They are in a word subversives.

It is amazing how apparently inflexible attitudes change. During year 2000, I would have thought it to be a huge struggle to get rid of don't ask don't tell.... gay marriage seem a quixotic objective that hardly was considered.

Now it seems it is only a matter of time until gay marriage is quite normal

I think the Supreme court can read the trend lines... they know it is coming... and I doubt they want to be on the wrong side of the issue since it would tend to erode their credibility


And the easiest way would be to avoid taking a case until it is a foregone conclusion. So they could avoid this current case and not have to make an uncomfortable ruling no matter which way they rule.

I am really optimistic that this might be the tipping point for same-sex marriage. I think that it is ridiculous to try and legislate morality, especially since one persons moral path might be very different from others. Make it available, and those that want to participate can, and those who do not want to, can maintain their own status quo.

By way of background, decisions of the 9th circuit are technically only binding upon the 9th circuit. Other courts and circuits may, at their discretion, give some, a good bit, or a great deal of weight to decisions in other circuits. However, since the 9th is arguably the most liberal circuit, other, more conservative, circuits could well ignore the ruling.



If the 9th circuit refuses an en banc proceeding, the plaintiff/appellant may appeal to the Supreme Court, just as he or she could do after losing at the en banc level.

The Supreme Court does not have to hear an appeal. If they refuse to hear an appeal the decision at the next lower court level stands as written.

Assume for a moment that the court en banc upholds the appeals court panel ruling. A rejected appeal to the Supreme Court would rule the ban unconstitutional but only for the Ninth Circuit, which includes, besides California: Alaska, Hawaii, Oregon, Washington state, Montana, Idaho, Nevada, and Arizona.

The decision would apply only in those states, and would most likely end up making unconstitutional similar referenda in one or more of those states.

If the en banc ruling reversed the ruling at the panel level, then the opponents of prop 8 would become the appellants at the Supreme Court level. If the high court refused to hear their appeal that would result in the upholding of Prop 8.

This is a big case with big issues. My guess is that the appellants (those who want Prop 8 upheld) will appeal directly to the Supreme Court rather than waste time on what is in all likelihood another loss even if the 9th circuit agrees to her the case en banc.

The Supreme Court would be in a touchy position. They could deny the appeal, leaving the 9th Circuit alone in holding that Prop 8 is unconstitutional. If they take the case, since their court calendar is already pretty full for the court year, which began on the first Monday in October last, they would have to do some shifting.

They might decide to leave the matter until after the election. I think they will decide to hear the case and announce their decision in late summer, early fall.

It's going to be an interesting few months.

Personally, I think that the SCOTUS will decline the case, because the holding is so narrow. If not, they will have to address the Roemer decision, and it is unlikely that there would be a vote to overturn it, especially as Justice Kennedy authored it. Also, it has few corporate rights implications, so the majority would not see much profit to it. They already have the DoMA case to stir up the base with. Oh, and I forgot to mention, the Affordable Care Act to do so as well. Don't think THAT is not political!

Some articles I have read mentioned that the appeals court decision relies heavily on the fact that Californians had the right to same-sex marriage, and then the voters took away that right for no legitimate reason. (Classic Tyranny of the Majority case.) If their ruling stands, it will only affect states in the 9th circuit in which citizens had the right only to have it removed. In other words: Only California.

But still, California holds something like 13% of the current US population. A few more densely-populated states and we will end up with something like the red/blue presidential election map: Most states not allowing it, but most of the population living in a state that does.

We already have about 18,000 same-sex marriages in California, and the state has not slid into the ocean. No tsunamis, no gigantic earthquakes, and straight couples are still getting married in both civil and religious ceremonies. As more people come to see same-sex marriage as common and normal, the closer we get to full marriage equality. I think the rate of acceptance is accelerating toward a singularity-type event.

The sad fact remains - the court will ultimately define marriage. The court is a function of government. The government is still the ruler of all in one way or another. Just more government intervention and control.

This issue shouldn't be the government's concern.

The really interesting thing about the Republican's unfulfilled swan song: "the government is too big", really doesn't need to be all that big if they figure out a way to control sexual behaviors - regardless of orientation. That would solve their problems with gays and abortion.

Meanwhile...back in the closets on Capitol Hill...

Potentially is the operative word.


It's a generational thing. The folks against gay marriage are dying off - like the dinosaurs which they are.

pondering, the majority opinion relies on the fact that domestic partners in California have exactly the same rights intra-state as married couples, therefore it found the only basis for denying the label "marriage" was one of animus.

If this goes before the Supremes it will be interest to watch the appellants try to disprove their animus. Just one commercial will prove the point.

Why can't the stay be lifted immediately?

The stay is discretionary with the 9th Circuit, but even if lifted I would guess it would be reinstated by the Supremes.

Here is what I believe is the applicable court rule:

Exactly. And it is not just the USA, this is also the clear international trend.

I don't know if the court thinks about such things.... but it seems clear that one side is on the wrong side of history... and it is doubtful that any restricted marriage rights ruling by this court can long withstand the implacable march of history.... no matter this court's political or personal views.

It seems to me that if this court makes a ruling that will soon be reversed by the tide of events.... that would tend to undermine their general judicial reasoning,,, and therefore weaken all of their 5/4 conservative decisions over the long term.

My marriage was, until the birth of our daughter and her daughter, the absolutely gayest day of my life and still ranks third behind those other two. I cannot for the life of me figure out why we would deny anyone the same gaiety just because of the gender of the partner they chose to join in the occasion. Nice to see legislatures and courts all over the country coming around to the notion.

Gay marriage should be the only kind of marriage we have around here!

My bold…

Cogh cough-Ahem--indeed after the dust has settled on this and everyone wonders what all the fuss had been about (say 10 years hence) this will all boil down to a goldmine for divorce lawyers and estate planners.

Be sure to get a prenup Phil if you choose to act on this. And Rick--fugedabout it. I don’t see marriage of any sort in your future.

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What effect will this have on common-law marriages?

If a guy shares a batchelor pad with another guy for six months, is he entitled to half the other man's property?

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It doesn't sound like that will be a problem...

I don't know of any jurisdiction that allows a "common law" marriage to be formed in months. Is that how it works in Canada?

Ken, I write prenups and estate plans for my clients, fyi

BTW, in case anyone wants to read it: PERRY v. BROWN and

I am aware of that. It was just designed to be a good natured poke at you.

On the other hand awhile ago we knew a gal whose father was an estate lawyer and he managed to die intestate. It was a can of worms that took the family years to unravel and about did in his spouse. Perhaps that was his intention--who knows.

I I had been drafting estate plans for over a dozen years before I could convince my wife, also a lawyer, to draft hers.

Tip, tip, tip, tip....Same-sex marriage bill approved by Maryland Senate