Saturday, November 20, 2010

Vikram David Amar A Preview of Possible Outcomes of the Upcoming Proposition 8 Argument Before the U.S. Court of Appeals for the Ninth Circuit

by Vikram David Amar

November 19, 2010

On December 6, the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in the federal constitutional challenge to Proposition 8 -- California's voter-enacted ban on same-sex marriage. While the identity of the three judges to whom the appeal has been assigned won't be known until a week before the argument, the time is ripe to sketch out at least some of the possible outcomes of the Ninth Circuit proceedings.

On one hand, the Ninth Circuit might decide the merits of the constitutional challenge and affirm U.S. District Judge Walker's conclusion that Proposition 8 violates the Fourteenth Amendment because discrimination against same-sex couples in the marriage context violates their fundamental liberty rights under the U.S. Constitution's due process clause, and/or is irrational under its equal protection clause.