"If there is no appeal to the Supreme Court, then the 9th Circuit ruling stands as precedent, and effectively provides the grounds to require legalized gay marriage within any of the states covered by the 9th Circuit..."
This is not really true. If you read the decision, the 9th Circuit specifically declines to address the question of whether denying same-sex couples the right to marry as a general proposition violates the federal Constitution.
From the decision:
"Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court"...Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has been long enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of the case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question {of whether the right to same-sex marriage is constitutionally guaranteed} in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents {in the form of the existing domestic partnership laws}. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.
In other words, since California already gave same-sex couples all of the incidents of marriage through its domestic partnership laws, including the right to adopt children, the court concluded that taking away
only the designation of 'marriage' could not have served any legitimate state interest other than to denigrate a minority of citizens, since the state's interest in childrearing or any of the other interests the proponents of Prop 8 often cite to justify their bigotry
could not have been affected:
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any authorized party, an important right--the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples...
SO, TO SUMMARIZE
What the 9th Circuit's decision DID do:
- It DID hold that Prop 8 was unconstitutional, because same-sex couples in California already had the same rights as opposite-sex couples, and therefore stripping the designation of 'marriage' from same-sex couples could only have been to discriminate and for no other reason. This is the only holding, in this specific set of circumstances, that would be BINDING on other jurisdictions provided the Supreme Court did not overturn this decision.
- It DID, more generally, talk about equality for gays and lesbians in positive terms. This could be used as PERSUASIVE, but not binding, authority for subsequent decisions by other courts.
What the 9th Circuit's decision DID NOT do:
- It DID NOT hold that denying same-sex couples the right to marry, as a general proposition, is unconstitutional.
- It DID NOT hold that laws discriminating on the basis of sexual orientation should be evaluated by the courts according to the stricter 'intermediate scrutiny' or 'strict scrutiny' standards which are applied to laws that discriminate on the basis of gender or race. (Notice the use of 'legitimate reason' in the block quote above. They are still applying the lowest-level 'rational basis' standard to this category of discrimination.)
NOW, THAT SAID.
I happen to think that this is a very specific STRATEGY on the part of the 9th Circuit panel. As much as they might like to address the broader questions of whether same-sex marriage is constitutionally guaranteed, or whether statutory discrimination against gays should be subject to the same test as gender or race, they know what is coming next: a Supreme Court decision with very shaky support, at best, for the good guys. So in order to make their decision as Scalia-proof as they could, they kept the decision as narrow as possible for two reasons: 1) they do not want the decision overturned on the basis that the 9th Circuit overstepped its mandate to decide this particular question; and 2) they do not want a potentially unfriendly SCOTUS to have an excuse to weigh in on the broader issue of whether gay marriage bans are generally constitutional.
Now - the Supreme Court can elect to decide this case on different grounds. They might elect to address the broader question. (Part of me agrees with the 9th Circuit's thinking - let's hope the Roberts Court stays far away.) But this particular decision would
not be a Constitutional endorsement of same-sex marriage rights were it affirmed by the Supreme Court in its current form. As I've explained above, I believe that is by design.
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