Prop 8: No Same-Sex Marriage Case at Supreme Court Anytime Soon

on February 21 2012 12:40 PM
Prop 8
Supporters of Prop 8, a now-unconstitutional ballot measure banning same-sex marriage in California, will take their appeal to the full Ninth Circuit Court of Appeals, instead of the U.S. Supreme Court. Twitter/johnupton

Same-sex marriage will not be heading to the U.S. Supreme Court any time soon.

After a federal appeals court said California's Prop 8 ballot measure prohibiting same-sex marriage was unconstitutional, its supporters will decline to take its appeal straight to the Supreme Court, SCOTUSblog reported Tuesday.

Instead, Prop 8 supporters are expected to take a slower route to the high court by asking the full Ninth Circuit Court of Appeals to review a three-judge panel's Feb. 7 ruling that said such a ban on same-sex marriage violates the U.S. Constitution's Equal Protection Clause.

This kind of request from Prop 8 supporters is known as an en banc hearing and, if the Ninth Circuit accepts their bid for a review, could lengthen the time it takes before the case could be heard at the Supreme Court. That would remove a politically-charged and controversial issue from the Supreme Court in a contentious election year.

Still, it is unclear if the Supreme Court would even take the Prop 8 case. The Ninth Circuit Court of Appeals wrote a narrowly-crafted opinion tailored to address the specific facts of the case and existing Supreme Court precedent.

Aside from getting the issue to the high court, a request for a review of the Ninth Circuit decision will push off legal same-sex marriage in California.

Though the Ninth Circuit struck down Prop 8, the actual court ruling affirmed a lower federal court decision that said the ballot measure was unconstitutional. Supporters of Prop 8 scored a stay in that lower court decision and its currently in effect. By filing for a full Ninth Circuit review, the stay will be automatically extended until the appeals court makes a decision on the request, according to Adam Bink, a Prop 8 blogger writing for Huffington Post.

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