SAN FRANCISCO (AP) _ The first word on whether California’s same-sex marriage ban passes scrutiny under the U.S. Constitution is scheduled to come down Wednesday when a federal judge issues his ruling in a landmark case.

Chief U.S. District Judge Vaughn Walker has reached a decision on whether to uphold or overturn the voter-approved ban known as Proposition 8 and plans to publish his opinion in the afternoon, court spokeswoman Lynn Fuller said.

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His verdict comes in response to a lawsuit brought by two same-sex couples and the city of San Francisco seeking to invalidate the law as an unlawful infringement on the civil rights of gay men and lesbians. 

Proposition 8, which outlawed gay marriages in California five months after the state Supreme Court legalized them, passed with 52 percent of the vote in November 2008 following the most expensive campaign on a social issue in U.S. history.

Attorneys on both sides have said an appeal was certain if Walker did not rule in their favor. The case would go first to the 9th U.S. Circuit Court of Appeals then the Supreme Court if the high court justices agree to review it.

Saying that Prop 8 raises a lot of the same questions as the landmark Brown vs. Board of Education ruling, Golden Gate University law professor Peter Keane says he thinks Prop 8 will be tossed out.

“I would be very surprised based upon what I saw of the trial, and based upon what I saw of the interaction of Judge Walker, particularly in the closing arguments, with the lawyers,” said Keane. “If Walker did not say that it’s a violation of the 14th Amendment Equal Protection, to not allow gay people to marry.”

Hastings College of the Law professor Rory Little says we can expect the ruling, whichever way it goes, to head to the U.S. Supreme Court probably via the 9th Circuit.

“There was a federal judge in Boston about a month ago, who struck down the federal equivalent of Prop. 8, called the Defense of Marriage Act, finding that it was irrational, that there was no rational basis to uphold it, and people expect that Judge Walker will refer to that ruling,” said Little.”

Anticipating such a scenario, lawyers for the coalition of religious and conservative groups that sponsored Proposition 8 in 2008 filed a legal brief Tuesday asking Walker to stay his decision if he overturns the ban so same-sex couples could not marry while an appeal was pending.

“Same-sex marriages would be licensed under a cloud of uncertainty, and should proponents succeed on appeal, any such marriages would be invalid,” they wrote.

Supreme Court Review Not a Given

It’s long been assumed that the Prop 8 case would end up in the lap of the highest court in the land, but that might not necessarily be the case.

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The first stop will be the Ninth Circuit Court of Appeals which has been labeled the most liberal appellate court in the nation, but Hastings College of the Law professor, and former Ninth Circuit clerk Lois Weithorn, says it depends on the kind of judges pulled for the panel. Attorneys for both sides will spend the next few months honing their arguments.

“They will go through a process that will likely take about a year before the Ninth Circuit will hear the case,” said Weithorn. “Given the prestige and skill of the lawyers who have represented the gay and lesbian couples here, most likely these lawyers will continue to represent them, and if in fact this case goes all the way up to the U.S. Supreme Court, they will likely continue.”

After a Ninth Circuit ruling, its expected the case will be reviewed by the Supreme Court but that’s not automatic.

“It may want to wait to see what other circuits do, so it’s unclear whether or not this case will ultimately appear before the U.S. Supreme Court on this go-round, or if we’ll have to see similar cases emerging from other circuits before the Supreme Court will accept it,” said Weithorn.

Walker presided over a 13-day trial earlier this year that was the first in federal court to examine if states can prohibit gays from getting married without violating the constitutional guarantee of equality.

Supporters argued the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing.

Opponents said that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.

The ruling is expected between 1 p.m. and 3 p.m. Wednesday afternoon, if you want to receive a text alert from KCBS when the Prop. 8 ruling is announced, text just the word “alert” to 45227.


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