As Lyle Denniston reports at SCOTUSblog, supporters of California's Prop. 8, the ballot measure that banned same-sex marriage, have now asked the U.S. Supreme Court to overturn the lower court ruling that struck the law down:
The document raised a single question: whether the Constitution's guarantee in the Fourteenth Amendment of legal equality prohibited California from "defining marriage as the union of a man and a woman." A three-judge panel of the Ninth Circuit Court split 2-1 in early February in striking down the proposition, finding that it was motivated by hostility to gays and lesbians. The filing of the petition by "Proposition 8? backers was the latest in a round of new appeals to the Justices on same-sex marriage issues. The other new cases involve the constitutionality of the 1996 federal law, the Defense of Marriage Act, that permits federal benefits only for marriages of a man and a woman. Those cases, though, do not raise the issue of whether there is a constitutional right for homosexuals to marry, as does the California case.
Assuming the Court takes this case, rather than the Defense of Marriage Act challenge, does that mean it will find gay marriage to be constitutional? There's a good chance it will, and Justice Anthony Kennedy is likely to cast the deciding vote. As I explained in an earlier column on the Prop. 8 case,
when it comes to gay rights, Kennedy leans libertarian. In Lawrence v. Texas, for instance, Kennedy declared that "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Similarly, in his 1996 majority opinion in Romer v. Evans, Kennedy struck down a Colorado constitutional amendment forbidding state officials from taking any action designed to protect gays and lesbians from discrimination. As he wrote, "the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Together, these decisions suggest Kennedy will once again join the Court's liberal bloc.