As many of us raised a beer, hopeful glimmer, and/or triumphant fist-pump to the Ninth Circuit's decision earlier this month declaring California's ban on same-sex marriage (Proposition 8) to be unconstitutional,  new questions arose for this developing civil rights controversy. 

For those of you who have not yet looked at the Ninth Circuit opinion authored by Judge Stephen Reinhardt, here is a link (and only a mildly judgmental "where have you been" look), and some cliff notes to help you drunkenly blister through your next dinner party argument. 

#8. Unconstitutional, unfair, and unreasonable

In a nutshell, the court held that Prop 8 is unconstitutional because it violates the Equal Protection Clause of the Constitution under a rational basis test (used in a sentence: a contested law must have a rational basis for achieving whatever legitimate state interest the legislature was addressing). The Equal Protection Clause forbids states from passing laws that target and discriminate against minority groups without legitimate reason, and applies here because homosexuals in America have historically faced religious and political persecution. 

#7. Extremely narrow holding

Especially unusual is the purposeful narrowness of this Ninth Circuit opinion, designed to escape Indiana-Jones-style from the unpredictable jaws of Supreme Court certiari. The Ninth Circuit plainly sidesteps the itching national question of marriage equality for same-sex couples. The idea being that The Supreme Court is unlikely to make a national, binding ruling on an issue that only affects one out of fifty states.

#6. California is special

  Instead, this opinion pertains exclusively to California. California is the only state that had already extended full marital rights (as well as the official designation of the word "marriage") to same-sex couples, only to later have voters take that right away in 2008. If you paid any attention in Conlaw 1, you might remember that the Equal Protection Clause (and the Constitution in general, and the concept of freedom) slightly frowns upon extending a right to a minority group and then taking that right away when this group does something you do not like.

#5. Prop 8 has absolutely no bearing on the ability of LGBT people to form families

The opinion concludes that Prop 8 fails the rational basis test because it has absolutely no bearing on the ability of LGBT individuals or couples to form or adopt families in California. Anti-gay appellants brought suit on a save-our-children-from-the-homosexuals and it's-contagious-and-all-8-billion-of-us-will-soon-be-extinct campaign. Thus, the failure of Prop 8 to affect the welfare of any children whatsoever means that it cannot serve the intended purpose of the law to protect children.

#4. Next steps: appeal to Ninth Circuit en banc, or US Supreme Court

As it stands, the proponents of Prop 8 have two options: appeal to have  the entire Ninth Circuit (spanning 9 states, 2 territories, and including 29 judges) reevaluate the case and nullify this panel opinion with their own decision  (also known as an en banc opinion), or to appeal directly to the US Supreme Court.  Both paths are dimly lit. 

If the Supreme Court does deny cert to an appeal filed by proponents of Prop 8 (which occurs for 99% of pending appeals for Supreme Court review each year), this current Ninth Circuit panel decision will stand and California will legally recognize the right of same-sex couples to marriage.

 #3. Oh Kennedy, wherefore are thou Kennedy?

Speculation has already begun on Supreme Court Justice Kennedy's leanings on the issue, but remains inconclusive at the moment. Back in 2000, Justice Kennedy voted to uphold The Boy Scouts of America's right as a private organization to ban homosexuals from being scoutmasters. Being the conservative-leaning tiebreaker on the current court, Justice Kennedy often favors right-wing ideology in close decisions.

However, Justice Kennedy has historically responded to tipping points in social milieu, which continues to favor same-sex marriage rights. Additionally, he hinted from a 1996 LGBT-discrimination case in Colorado (Romer) that it was not in this nation's constitutional tradition to identify persons by a single trait and then deny them legal protections. Justice Kennedy also identified LGBT people as a protected class in the U.S.

#2. The art of stalling can save gay marriage

The Supreme Court's refusal to adjudicate on this issue is somewhat likely given the Supreme Court's historical unwillingness to interfere in matters traditionally left to state discretion (which, as the Tenth Amendment of the Constitution tells us, is everything that the Constitution does not assign to a branch of the federal government). Justices may well decide that the Court should avoid same-sex marriage unless absolutely necessary and deny review of the case. Even if the case is appealed to the Court in a year's time and reaches the Court in a timely manner, at least 2-3 years are likely to pass by before they issue a ruling. Polls consistently show popular attitudes trend in favor of homosexuality and same-sex marriage over time. By the time the justice review the issue, many more states could well have legalized same-sex marriage on the books, increasing the likelihood that the Supreme Court will uphold the Ninth Circuit decision. 

In the meantime, same-sex marriage advocates in California are currently collecting signatures to bring a November ballot initiative to repeal Prop 8 later this year.

 #1. California is really, really important

Despite Judge Reinhardt's best efforts in writing such a narrow opinion, the sheer size and significance (can't tell where I'm writing this at all, can you?) of California suggests that this decision may be deemed worthy of review by at least 4 members of the Supreme Court (which is the minimum requirement for the Supreme Court to accept a case). 

Does this mean our current US Supreme Court will be deciding the civil rights of millions of LGBT couples once and for all? Doesn't that just mean that Justice Kennedy, conservative stalwart teeter-tottering on the coattails of his bro-crush Scalia, will be making this decision as tiebreaker? If I pray just hard enough, will Justice Scalia finally grow a heart?

All good questions. All currently answerable only by speculation, gossip, and tea leaf interpretation.