What's Next for Prop 8 Washington May Benefit from the Federal Case on Gay Marriage

By a federal judge. Pargon / Flickr

In finding California's Proposition 8 unconstitutional, U.S. District Court judge Vaughn R. Walker was doing more than striking down a ban on same-sex marriage. His 136-page ruling on August 4 drew a path for the case to reach the U.S. Supreme Court. In the meantime, he elevated the question of Prop 8's future—and the rights of same-sex couples—to the nation's penultimate stratum of justice, the United States Court of Appeals for the Ninth Circuit, which affects nine states within its jurisdiction, including Washington State.

So what happens next?

Jon Davidson, legal director of Lambda Legal, which has filed an amicus brief in the case and is one of the county's strongest litigators on LGBT rights, outlined two possible positive results. "If the Ninth Circuit upholds the outcome," Davidson said, "then Prop 8 would be struck down and same-sex couples could marry again in California, and the voters of California could not do anything about that in the future."

In a more specific outcome—if the court rules using precisely the same reasoning as Walker—"then same-sex couples would be allowed to marry in all nine states in the Ninth Circuit, including Washington," Davidson continues.

An identical ruling from a higher court would be the best possible result for the gays, both because more people would win marriage rights and because Walker's ruling was definitive in debunking anti-gay myths (for instance, he shredded the argument that gay parents are inferior to straight parents).

But such a sweeping ruling in the Ninth Circuit is unlikely, Davidson says. The court may be more inclined to avoid a ruling that legalizes gay marriage in all nine states. For example, it could instead choose to draw parallels between California and states that already have domestic-partnership laws on the books.

"In a state like California, where the couples are given all the rights of marriage through domestic partnership, there is not a legitimate state reason to deny them the status and name of marriage," Davidson says. "They could say the only reason they are being denied that status and name is to single them out as different and unworthy of marriage—and the state cannot do that."

In other words, it's more likely the Ninth Circuit will decide that states can't allow a separate-­but-unequal distinction between domestic partnerships and marriage. It could decide, in that case, to enforce its ruling in "California, Oregon, Washington, and Nevada—which are states that provide comprehensive partnership rights," he says.

In any outcome, the ruling will be appealed. But it's unclear if the Supreme Court will accept the appeal, due to a variety of factors. The Supreme Court could reject an appeal of a narrow ruling from the Ninth Circuit (thereby ducking the big scary question of legalizing gay marriage nationwide). But in rejecting the case, the Supreme Court would be letting the lower court's ruling stand. In which case, Washington may be in a very good position to benefit from legal gay marriage because we already have a comprehensive domestic-partnership program on the books. But, of course, anything is possible.