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By Serena Scaglione

February 9, 2012 (San Diego)--Tuesday’s decision by the 9th U.S. Circuit Court of Appeals to rule the Proposition 8 ban on same-sex marriage unconstitutional may withstand a challenge to the nation’s highest court, due to the tight legal grounds surrounding the issue that are specific to California. 

Same-sex couples could wed in California for a brief-period before Prop 8 passed in 2008, as the  Sacramento Bee reported. The appeals court decided that California was unfair in taking away a right previously granted, but did not address whether same-sex couples should continue to be denied this right.

This decision was based on a constitutional violation of the equal protection act, thus legal scholars have indicated the U.S. Supreme Court may not grant an appeal sought by Prop. 8 supporters. If the appeal does go to the high court, the justices may decide not to overturn Tuesday’s ruling.

Ruling the same-sex marriage ban unconstitutional sparked many reactions here in San Diego. In a statement released Tuesday by the San Diego Alliance for Marriage Equality, advocates of the LGBT community were pleased with the court’s decision but frustrated that the stay on same-sex marriage still remains.

“We recognize that the court’s decision today strengthens the argument that there should be no discrimination against the Lesbian, Gay, Bisexual and Transgender (LGBT) community, but we are angered that the courts are allowing this judicial process to stand in the way of justice delivered, by granting a continuation of the stay on the decision,” the group’s press release stated.

Those against same-sex marriage have also been quick to react to this highly publicized issue. In an interview with ECM news partner 10 News, Randy Thomasson, president of,  indicated he believes the ruling is unjustified.

"It's illogical and unconstitutional to claim that natural, unchangeable race and ethnicity is the same as sexual behavior," he said. "That's not fair or true. Race and ethnicity are inherited, but science has never found homosexuality, bisexuality or transsexuality to be inherited or unchangeable."

While the decision has provoked conflicting responses, both sides agree that the ruling is far from final or that the fight for and against same-sex marriage is far from over.

According to Julie Greenberg, a professor at the Thomas Jefferson School of Law, what happens next is up to Prop. 8 supporters.

“They could ask the full 9th Circuit to rehear the case,” Greenberg told ECM in an e-mail. “If the 9th Circuit agrees, an 11-judge panel will be picked to rehear the case.” 

Opponents of the ruling also have another option, she indicated. “They could instead go directly to the U.S. Supreme Court and ask it to review the case.  The decision is up to them.  Both types of review are discretionary,” she concluded, adding, “Neither court has to grant the request.”




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