Proposition 8: What to hope for from the Supreme Court

The U.S. Supreme Court could decide very soon -- or not for weeks -- whether it will take up the case of Proposition 8, making this a nail-biter of a waiting period. The question is, if you’re a supporter of equal marriage rights, as The Times’ editorial board is, what are you supposed to wish for?

If the court decides not to review the case, that means Proposition 8, the ban on same-sex marriage approved by California voters nearly four years ago, dies. Under this scenario, the court would not consider overturning the decision of a panel of the U.S. 9th Circuit Court of Appeals that found that the initiative unconstitutionally deprived gay and lesbian couples of marriage rights. The ruling, though, was much narrower than the decision by the trial judge, finding that what made Proposition 8 unconstitutional was that these couples already had the right to marry in the state, a right that was taken away by the initiative.

“Withdrawing from a disfavored group the right to obtain a designation with significant social consequences is different from declining to extend that designation in the first place,” wrote Justice Stephen Reinhardt.

TIMELINE: Gay marriage chronology

The problem is that there aren’t many states where gay and lesbian couples had the right to wed and then had it taken away, so the ruling would affect mainly California and possibly one or two other states.

If the Supreme Court were to review the case, it could decide to uphold the lower court, but it also would consider whether same-sex marriage was a protected civil right in the first place -- whether or not it had ever been bestowed. If it reached such a conclusion, it would be determining that homosexuals constituted a discrete, insular group that had long suffered discrimination under the 14th Amendment. Laws that subject such groups to discrimination must withstand intense legal scrutiny to stand. Many court watchers consider the court unlikely to make such a finding.

And it’s also quite possible that a decision to review the case would result in the court deciding that there is no problem with bans on same-sex marriage, no matter under what circumstances they occur.

As great a victory as it would be to defeat Proposition 8 and extend marriage rights in the most populous state, the ideal would be a ruling recognizing the inherent right of same-sex couples to wed. An adverse ruling, of course, would be a tremendous setback to the cause of equal marriage rights, which has been gaining popularity in polls.

Which would be better: A decision not to review the case, with its pragmatic victory for same-sex marriage in California, or a review that could set in stone the legality of marriage bans across the country -- or possibly throw them all out?

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