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Expect More Legal Twists In Battle Over Prop. 8

Supporters of Proposition 8, the California measure that restricts legal marr...

Photo by Justin Sullivan / Getty Images

Above: Supporters of Proposition 8, the California measure that restricts legal marriage to heterosexual couples, stand between opponents of the measure in San Francisco in August during one of the many legal proceedings in the case.

A hearing Monday in the 9th Circuit Court of Appeals is just the latest twist in the long legal battle over California's ban on same-sex marriage.

The common wisdom is that the U.S. Supreme Court will ultimately rule on the constitutionality of Proposition 8. But there's no straight path to the high court.

Even before Monday's hearing, legal experts had debated the many possible outcomes. For example, if the 9th Circuit affirms the ruling that struck down Proposition 8, then the gay marriage ban would be a dead letter in California and all the other Western states.

"And you'd have a situation where there would be a federal constitutional right to same-sex marriage west of the Rockies, but nowhere else in the United States," says Vik Amar, associate dean of the law school at the University of California, Davis. "And I think that would probably force the U.S. Supreme Court to take the case to consider the issue."

But it might not get that far — at least not very soon. Because even before the 9th Circuit deals with the constitutional issues, it must first decide whether the sponsors of Proposition 8 have the legal right, or standing, to be in court in the first place, says Marc Spindelman, a professor at Ohio State University's Moritz College of Law.

A Debate Over Standing

"Their best argument that they have standing appears to be an argument that says that the state courts allowed them to defend the marriage amendment in the state courts, and so that they ought to be allowed and understood to have standing under state law to defend in federal court as well," Spindelman says.

But the 9th Circuit could say that only the state's top executives can defend the voter-approved constitutional amendment. Outgoing Gov. Arnold Schwarzenegger and incoming Gov. Jerry Brown have already declined to defend it. And the newly elected attorney general, Kamala Harris, says she won't either.

"We will not defend Proposition 8. It is clearly ... a proposition that was found by a judge to be unconstitutional," Harris says. "And we should not use the limited resources of the state to defend a law that has been found to be unconstitutional, and I will not."

If the sponsors of Proposition 8 lose on the standing issue at the 9th Circuit, they can appeal to the Supreme Court. But traditionally, the high court has not been very sympathetic, says University of Virginia law professor Carl Tobias.

"For the last 20 years or so, it has narrowed standing. Or to state it differently, it has been more difficult for plaintiffs to show standing in order to proceed to the merits," Tobias says.

A Legal Can Of Worms?

There's another set of possibilities on the standing issue. The Southern California county of Imperial also claims standing to defend Proposition 8 — and that presents another potential legal can of worms, says Amar, of the University of California, Davis.

"If one county has standing, then all counties would have standing," he says. "And if they all take different legal positions about the meaning of Prop. 8, and whether it should be defended and how it should be defended, how are you to decide which county really speaks for Prop. 8?"

Regardless of how the three-judge panel rules, the losing side is likely to request an en banc hearing — in other words, a new hearing before a larger panel of the 9th Circuit. That's a process that could take this case well into next year, partly because the panel at Monday's hearing may not be in a hurry to issue its ruling, says Ohio State's Spindelman.

"The opinion is going to be an opinion that's written both to decide the case but also with an eye to the historical record," he says. "So I wouldn't expect for the opinion to come out too quickly — certainly not at the expense of the care and thoughtfulness and deliberation that the significance of the case would counsel."

Forecasting what will happen in the case is tricky business. The legality of same-sex marriage in California has been argued in the courts since 2004, and the litigation has already seen many unexpected twists and turns.

The ruling by Monday's panel could take from three months to a year.

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