Have I got a Proposition for you

This week, California’s gays and lesbians had reason to celebrate. An appeals court upheld an earlier ruling that a controversial measure to ban same-sex marriage in the state was unconstitutional. The measure, ‘Proposition 8’, was a citizens-initiated referenda that passed in 2008. Religious and conservative groups had championed the measure as a means to overturn a ruling from the state’s Supreme Court that had opened the door to gay marriage in California less than a year earlier.

As legal scholar Noah Feldman writes, not all is good news for advocates of same-sex marriage. The appeals court’s ruling is narrowly defined: it doesn’t establish a right to gay marriage. Rather, it ruled Proposition 8 unconstitutional strictly on the basis that it took away from gays and lesbians what had previously (though only briefly) been an equal right to marriage. Hence, if the matter is appealed again to the federal Supreme Court, the justices there will not be asked to judge whether gay marriage is itself a constitutional right, but solely whether Proposition 8 introduced discrimination on the basis of sexual-orientation to something where an equal right had already been created.

Then again, there are no guarantees this matter will end up in the US Supreme Court. The Californian government was not a party to the appeal — the groups that brought the action may not be recognised by the Court. But in an election year, some conservative justices may be chomping at the bit to hear the case anyway.