In all of the legal maneuvering surrounding the challenge in federal court to Proposition 8, California’s 2008 voter-approved ban on same-sex marriage, one thing has seemed all but certain: the case would eventually head to the Supreme Court.
Judge Sidney R. Thomas is on a panel that will review lifting a stay on a decision invalidating California’s Proposition 8.
But that trip could come — in a way — as soon as this week, as proponents of the ban seek to prevent a resumption of same-sex marriages. Judge Vaughn R. Walker of Federal District Court, who this month ruled Proposition 8 to be unconstitutional, lifted a temporary stay on his decision on Thursday, but allowed six days for a three-judge panel of the United States Court of Appeals for the Ninth Circuit to review it.
Some legal experts are skeptical of whether the Ninth Circuit panel — made up of two Democratic appointees and a moderate Republican — will intervene. And so it is that proponents may find themselves heading to the Supreme Court to try to obtain an emergency stay.
It is at that level that proponents, who are on a legal losing streak, may find some relief, experts say.
Richard L. Hasen, a professor at Loyola Law School in Los Angeles who has commented extensively on the Proposition 8 trial, said the Supreme Court had been somewhat dismissive of decisions from the Ninth Circuit, particularly on “hot-button issues.”
“It’s really hard to predict what the court is going to do, but it seems in those cases that the Supreme Court is less deferential,” Mr. Hasen said.
If proponents did go to the Supreme Court, Mr. Hasen said, the justices would not be ruling on the facts or findings in the case, but on whether there was a potential harm being caused by Judge Walker’s lifting of the stay.
“A decision granting a stay would not necessarily portend a reversal on merits,” Mr. Hasen said. “It just preserves the status quo” that no same-sex marriages could be performed in California.
