Prop 8 same-sex marriage ruling: How will the federal court decide?

A gay pride and an American flag hang from a shoulder bag during a demonstration outside of the Phillip Burton Federal Building on June 13, 2011 in San Francisco.
A gay pride and an American flag hang from a shoulder bag during a demonstration outside of the Phillip Burton Federal Building on June 13, 2011 in San Francisco.
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Voters passed Prop 8 — California’s ban on same-sex marriages — more than three years ago and it’s been in court ever since. Eighteen months ago, federal judge Vaughn Walker struck down Prop 8, deeming it unconstitutional. Prop 8 supporters immediately filed an appeal and after various twists and turns, the decision on that appeal will be announced at 10 a.m.

Legal experts on both sides expect the federal appeals court to uphold the lower court judge’s ruling.

“I don’t think anybody that was in attendance at the oral argument thinks anything but that the Ninth Circuit panel that heard the case is going to say that Prop 8 is unconstitutional," says John Eastman, the former dean of the Chapman University School of Law. Eastman heads the Center for Constitutional Jurisprudence, which filed an amicus brief in support of Prop 8. He says what’s important to look for is the scope of the Ninth Circuit’s ruling.

“The question is whether they do it on the very broad, exceedingly broad, grounds that Judge Walker ruled that gender is no longer relevant to marriage, that procreation was never a part of marriage, some preposterously wrong and broad statements — or whether they find a much more narrow way to invalidate Proposition 8,” he said.

A narrow ruling might say that Proposition 8 is unconstitutional in California due to the state’s unique history of same-sex marriage. The California Supreme Court upheld the legal right of same-sex couples to marry under the state constitution. Thousands of couples wed, but voters then took away that right with Prop 8.

Eastman thinks a narrow ruling that applies only to California has a better chance of surviving an appeal to the U.S. Supreme Court, which is where the Prop 8 case is expected to end up.

In arguing for Prop 8, supporters said the state had a vested interest in limiting procreative sex to marriages to ensure stable families that were capable of supporting children.

UC Davis law professor Courtney Joslin says the Ninth Circuit could look at that argument and decide to rule, “that the right to marry that has been identified as a fundamental right under the due process clause includes the right to marry someone of the same sex, and that proponents here have not offered a compelling state interest to justify the infringement of that fundamental right.”

Joslin, who used to litigate for the National Center for Lesbian Rights, says the Ninth Circuit could go a step further and say that state statutes that limit marriage to a man and a woman discriminate on the basis of sex.

A ruling like that might serve as a precedent for legal challenges to Prop 8-style laws in other states within the Ninth Circuit.

But that still will not be the end of the story. The fight will almost certainly end up before the U.S. Supreme Court, and its ruling will serve as the ruling for all.

Live streaming of press conferences from a group that opposes Prop 8 will be available here at 10:30 a.m. and 5 p.m. We will post the decision in PDF format shortly after it is posted on the Ninth Circuit court's website.