Gay rights proponents in North Carolina may be heartened by a federal appeals court ruling Tuesday that California's ban on gay marriage is unconstitutional, but it's likely that the case won't affect our state's upcoming vote on a constitutional amendment banning gay marriage.
A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled against California's Proposition 8, which voters approved after the state supreme court had struck down a law that limited marriage to between a man and a women. The appeals court panel ruled that those rights couldn't be rescinded.
That ruling was so specific to California that it doesn't apply to other states, says Holning Lau, an associate professor of law at UNC Chapel Hill. "The appeals court said that Proposition 8 is problematic because it involves taking away marriage rights," says Lau, who specializes in constitutional law, as well as sexual orientation and the law. "That hasn't happened anywhere else in the country."
The best hope for gay rights advocates in North Carolina is that the California case makes it to the U.S. Supreme Court. Proposition 8 proponents say they are contemplating whether to ask the full 9th Circuit Court to hear the case first. If they choose the Supreme Court instead, the case would likely be heard next year.
That's if it's heard at all. Experts say the narrowness of the 9th Circuit ruling might prompt the Supreme Court to pass on the case. Or justices could take the case and rule as narrowly as the panel did Tuesday.
We hope the U.S. Supreme Court takes advantage of this opportunity to take the wider view and address the constitutionality of denying gays the state-sanctioned right to marry. That will happen eventually, Lau says, but this court has a history of taking a minimalist approach and ruling only on the case at hand.
"I do think that eventually the Supreme Court is going to have to deal with the issue of marriage equality," he says. "The question is when."