With or without yesterday's ruling that extended a stay on same-sex marriages in California, the chance that the Supreme Court will finally decide gay marriage seems likely.
Yesterday's ruling by a three-judge panel on the U.S. Ninth Circuit Court of Appeals said that gay-marriage licenses cannot, for the time being, be issued despite Judge Vaughn Walker's recent ruling overturning Proposition 8, which banned same-sex marriages in California.
But the panel also ruled that the case will be expedited. An appeals court will begin hearing arguments on the constitutional challenge to Prop 8 on Dec. 7. The three-judge panel directed opponents of gay marriage to make the case in an opening brief due Sept. 17 for "why this appeal should not be dismissed." Yet even if the Ninth Circuit determines that they lack that evidence, opponents of gay marriage can still appeal to the Supreme Court, say legal experts.
The Ninth Circuit's ruling gave reason for both sides to feel anxious and ready for the battle ahead. Efforts to win the hearts and minds of the public are the newest order of business for activists.
"The fact that the most liberal court in the country just decided to rein in Judge Walker clearly shows how extreme his decision was," Brian Brown, president of the National Organization for Marriage, tells NEWSWEEK. He says that the expedited schedule simply means the court wants to move quickly, and that he expects opponents of gay marriage to appeal to the Supreme Court if the Ninth Circuit does not rule in their favor. Once there, he expects victory: "Marriage as the union of one man and one woman will be upheld by the Supreme Court. Judge Walker's decision is so biased, and so unrooted in precedent, that it is destined to be overturned by any fair judge." In a widely circulated statement, Brown wrote: "One way or another, the people of California will get their day in court, and we expect the U.S. Supreme Court, or Congress if necessary, to defend our right to vote for marriage."
A top lawyer with the team that is fighting for gay marriage, Ted Boutrous, says that the decision to block marriages in California for now was expected.
"We always thought that this was a potential result—a stay, but with an expedited briefing schedule--and we suggested it to the court as an alternative," he says. Despite the disappointment of gay couples, the hold on issuing licenses could be politically advantageous to those who support gay marriage, denying the possibility for it to become a hot GOP issue come November. The expedited schedule, says Boutrous, is extremely helpful and "paves the way for us to obtain the fastest possible ruling affirming the judge's order striking down Proposition 8."
Boutrous does not think the biggest threat to opponents of gay marriage is the court's Article III challenge, which requires them to show evidence that same-sex marriage harms them. The main stumbling block for opponents, he says, is simply Walker's "detailed factual findings and legal rulings" on Prop 8's unconstitutionality. But, he adds, the Article III challenge "is another weapon in our arsenal, and another problem for them."
Yet supporters and opponents of gay marriage expect no clear answers this year. The final verdict might come in 2011—at the earliest—if the case keeps moving swiftly, and it will come, as all sides still expect, from the Supreme Court.