07 February 2012

Prop. 8 Decision ... might NOT go to Supreme Court?

The L.A. Times is reporting speculation amongst legal scholars that today's 9th Circuit decision in Perry v. Brown, very narrowly finding California's Prop. 8 to be unconstitutional under the 14th amendment, may NOT end up being accepted for review by the Supreme Court. The decision (which I've read), is pretty clearly directed to Justice Kennedy, who was the author of the 1994 Supreme Court decision Evans v. Romer finding unconstitutional a Colorado law prohibiting local jurisdictions from enacting anti-gay-discrimination statutes. Kennedy is widely seen as the likely deciding tie-breaking vote should this case, or any "Gay Marriage" case, come before the High Court.

Today's decision is intentionally narrowly based on the specific procedural and legal posture of the Initiative Constitutional Amendment and context of pre-existing law in California, and will not have wide-ranging effects on other states' laws. The Supreme Court, the thinking goes, may well take a pass on this one, allowing this case to stand as the law in California, while waiting for a more general-question case on whether or not the 14th amendment is violated by gay marriage bans, in general.

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