WASHINGTON, D.C. (CBS SF) — The U.S. Supreme Court’s long-awaited decision on Proposition 8, California’s ban on same-sex marriage, is due on Wednesday.

Chief Justice John Roberts said at the close of a court session Tuesday that the panel would issue its remaining opinions Wednesday, which is now the last day of the court’s current term.

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The Proposition 8 decision will likely be announced shortly after 7 a.m. PST.

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Since it was passed in 2008, California’s marriage ban for same-sex couples has been argued in front of numerous courts, yet there are still many ways the U.S. Supreme Court can decide this final case. Each possibility has its own repercussions for the state and the nation at-large.


In 2009, the first round of challenges were heard in the California State Supreme Court. The Court upheld Prop. 8, as well as those gay marriages performed when legal.

In 2010, the San Francisco Federal District Court struck down Prop. 8. Chief U.S. District Judge Vaughn Walker ruled it unconstitutional under both the due-process clause and the equal protection clause of the constitution. This would mean the right to marry exists on federal grounds.

In 2011, proponents of Prop 8 appealed their case to the Federal Ninth Circuit Court of Appeals. The court struck down Prop 8, claiming it violated California’s legitimate government interest. The courts of California had earlier granted the right to gay marriage according to the California Constitution, so Prop. 8 unfairly targeted and took away a right that had been granted. In their words, Prop. 8 “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” After the court denied a re-hearing, only the U.S. Supreme Court was left.


According to San Francisco attorney Paul Henderson, labeled by California Lawyer Magazine as one of the most astute legal minds in the state, “it is likely that the U.S. Supreme Court will rule in such a way that only affects California, as they have been hesitant in the past – and seemed hesitant in the arguments – to make national rulings on controversial social issues.”

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With that being said, Henderson offered CBS San Francisco a look at what some of the likely rulings might include:

Scenario 1: Reverses Decision. The Supreme Court reverses the Ninth Circuit opinion, upholding Prop. 8 as constitutional at the state and federal level.

Scenario 2: Upholds Decision. The Supreme Court upholds the Ninth Circuit opinion, striking down Prop. 8 using the same state-specific reasoning. This would mean gay marriage continues its state-by-state battle, with the possibility of legal challenges to Prop. 8-like laws in other states.

Scenario 3: Affirms Decision on Other Rationales. The Supreme Court affirms the Ninth Circuit opinion, however they are divided in reason (or simply use a different reason than the Ninth Circuit). Some possible reasons include gender discrimination, lack of standing, due process, merits, or others. Such a divided opinion would give jurisdiction back to the Ninth Circuit decision, striking down Prop. 8 for state-specific reasons.

Scenario 4: Dismisses Case. The Supreme Court dismisses the petition for certiorari, making the Ninth Circuit decision the final decision, striking down Prop. 8 on a state-specific basis. This would mean gay marriage continues its state-by-state legislative battle, with the possibility of legal challenges to Prop. 8-like laws in other states. A number of justices seemed to indicate they felt this way during the hearings, noting it didn’t seem like a case they should be deciding.

Scenario 5: Decides Proponents Lack Standing to Appeal. This is perhaps the messiest scenario, vacating the Ninth Circuit opinion, making the District Court opinion the final decision. In spite of the federal constitutional basis of their decision, District Court precedence does not have the same sway as Supreme Court precedence. This would lead to probable further challenges in other states.


If the U.S. Supreme Court were to strike down Prop. 8 on broad constitutional grounds, as the Federal District Court had, then it could lead to the legalization of gay marriage in all 50 states.

But Henderson believes the Supreme Court will probably not rule in such a way that provides federally guaranteed right of marriage.

“The court tends to be conservative on controversial social issues, allowing consensus to build at the state level. This is part of what made Roe v. Wade so controversial at the time – it made a decision as states were still debating their own policies,” he said.

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