Prop 8 Decision by U.S. Supreme Court Could Help, or Hurt, Thousands of Local Gay Couples

Thousands of Washington couples are among the gays and lesbians nationwide that could benefit--or be irreparably harmed--if the U.S. Supreme Court takes up the issue of gay marriage on the heels of a federal judge's ruling overturning Proposition 8--the California law banning gay marriage--yesterday. If the court upholds judge Vaughn Walker's decision, all state laws limiting the institution to heterosexuals could be declared unconstitutional. But if his decision is overruled, the precedent could open the door for other discriminatory laws against gays and lesbians. So what are the chances of the U.S. becoming a gay utopia in the foreseeable future? Not so good, say legal experts.

University of Washington law professor Stewart Jay says the numbers just aren't favorable for gays and lesbians. "I cannot imagine Chief Justice [John] Roberts, or Justices [Antonin] Scalia, [Clarence] Thomas, and [Samuel] Alito, agreeing with [Walker's decision]," he says.

The ruling would likely hinge on Justice Anthony Kennedy, Jay adds, a Ronald Reagan appointee whose vote "is difficult to predict."

Jay's colleague Peter Nicolas says that if the U.S. Supreme Court were to side with proponents of Prop 8, it could have implications that go beyond just marriage. He explains that when the Supreme Court upheld a Georgia law banning oral and anal sex in 1986, "lower courts would frequently cite it as a rationale for upholding laws discriminating against gays and lesbians." It took almost two decades for the court to overturn that decision.

Of course just getting to the Supreme Court in the first place isn't a given. "As a general rule, the court will wait for several lower courts to decide an issue before opting to review it, as they like to have the issue develop in the lower courts," Nicolas says.

Though for gay couples in Washington, the appeals process that leads to the Supreme Court could also have potential benefits (or drawbacks). Nicolas points out that before they try to get a hearing before the highest court, proponents of Prop 8 have to take their case to the Ninth Circuit Court of Appeals.

The region covered by the Ninth Circuit includes Washington state, so if the court rules against Prop 8 there, the ruling would apply to Washington and its Defense of Marriage Act, which also bans gays and lesbians from traditional matrimony. Of course, once again, if anti-gay Prop 8 backers win, it sets a tough legal precedent that would make it even harder for same-sex couples to gain equality with their heterosexual counterparts in this state.

The Secretary of State's office can't say exactly how many Washington couples would be impacted. There are 7,780 registered domestic partnerships in the state. Some are same-sex couples; others are heterosexual couples over the age of 62. But there's no doubt further rulings could impact several thousand households here.

"The stakes are high," Jay says.

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