Today, the US Court of Appeals for the 9th District ruled that Proposition 8 was unconstitutional. As we know, Prop 8 was the California ballot measure which in 2008 made same-sex marriage illegal in that state. This action, by a 2-1 vote, affirmed the ruling made in a lower court and virtually ensures that it will be taken up by the US Supreme Court.

The rationale for the Appeals Court decision was that Proposition 8 violated the civil rights of people who wished to engage in same-sex marriages, and thus was unconstitutional. The basis of the court’s ruling appeared to depend on the fact that a number of such couples chose to wed before the Proposition was passed, and then no further marriages could occur once the people had voted. Therefore, a right was removed from a class of people. Although Proposition 8 was passed three years ago, and oral arguments were heard last year, it took this long for the judges to reach their decision, since part of the appeal was based on the argument that the judge who made the original ruling was gay, and therefore biased in his ruling. All three of the judges in this panel decided that Judge Walker exhibited no bias in his ruling.

The question now is what the Supreme Court will do, since everyone assumes that the appeal will go there for a final ruling. Virtually everyone assumes that they will either uphold Proposition 8, keeping same-sex marriage illegal in California, that it will decide to make same-sex marriage legal everywhere, or that it will continue to permit such marriages to be legal in states that approve of it. I think that there is another option that is more interesting. What if the Supreme Court ruled that same-sex marriages can be recognized on a state basis? Thus, a state like Alabama, for example, could state that it does not wish to accept such marriages even though they were approved in one of the states (currently 7, not counting California). But think of the interesting dilemma faced by other places. In Louisiana, for example, I’d guess that many of its tourist dollars come from gay visitors. Florida is in the same boat. Would they be willing to throw away tourists’ money to make an ideological point?

The other interesting thing to me is that this removes an issue that Obama was struggling with. He has consistently stated that he opposes same-sex marriage, but wants other rights extended to gay couples. This has not pleased his erstwhile supporters in this community, who are upset that, despite their assistance, he has not been willing to stand up for them. Now, he can always claim that it wouldn’t be appropriate for him to speak while court action is pending. Therefore, he doesn’t have to upset older citizens by voicing support for something that they feel strongly about. As we know, polling in support of gay marriage is, at least aggregately, an age dependent decision. Those under 50 are much more supportive; as age declines, support grows measurably. Likewise, people over 65 are the least likely to favor it.