For the SCOTUS to review the case on appeal, they will need to agree that the party making the appeal has the legal right to do so, as that was an issue on the fed court appeal, and I wonder if the SCOTUS isn't bound by the lower fed court's acquiescence on that matter. So it is possible that the SCOTUS may decline to accept the case.
Regardless, it appears that the definition of marriage is being decided by the courts. Interesting ...
Historically, society decides such things, with "marriage" long defined as "between a man and a woman as husband and wife", which is, essentially, what the CA popular vote upheld, the societal vote in CA.
For there to be discrimination in the matter, the participants would still have to confrom to the definition, like if a Black man and White woman wanted to marry and were being told they couldn't, that would be discrimination.
But as societally pre-defined, two men or two women or three-plus of anyone or one person trying to marry him/her self .. prohibition against that would not qualify as discrimination by definition.
The question here was "what is the definition of marriage?" and the CA society of voters upheld the traditional definition of "between a man and a woman as husband and wife", though not by a wide margin.
The Governator and AG Brown, who initially said when campaigning that he'd support whatever the people decided, flip-flopped when the vote didn't go their way, and, essentially, refused to do his job of appealing the law when a federal judge initially struck it down as unconstitutional. So the sponsors of Prop 8 took it upon themselves to appeal to the 9th Circuit, an appeal they almost didn't get to make because according to protocol the AG's office was the right appealer in the matter.
The issue set forth a foundation, that though gays couldn't marry, they were still able to form civil unions.
The social argument was akin to telling pet owners that, okay, you want to enter your cat (gays) in a pet show for cats and call it a "dog show" (a marriage), or, also appropriate, you want to enter your cat in a dog show where it's supposed to be only about dogs. The dog show people were simply saying that cats don't belong in a dog show, that cat owners can have their own show if they want, with just cats, but they should call it a "cat show" (civil union), and under no circumstances could they call it a "dog show" as that steals the meaning from dog shows, devaluing them.
The argument was reasonable .. but only in so far as a basic majority is considered sufficient by society for deciding such matters.
Traditionally it wasn't an issue, as the overwelming vast majority supported the definition of marriage as being "between a man and a woman as husband and wife".
But today, as the CA vote illustrated, the societal opinion on the matter may be within a mere four to 10 percent on the matter, depending on location.
To me, the question isn't about discrimination, it's about how does one decide in such social matters.
Is the CA vote sufficient?
Is a slim majority enough?
Is a 66% majority or more required?
These, to me are the issues here, as the matter is not discrimination if a sufficient method has occured of socially deciding in America that marriage is societally defined "between a man and a woman as husband and wife".
What I hope doesn't end up being the correct conclusion here is that a handful of judges decide the definition.
Better is that the judges decide and declare the appropriate method for allowing society to so define marriage.
When the election is over and we open our eyes, it will sadly be too late to wonder what the hell just happened.
In any regard sexual orientation is what Walker was trying to get around with his rationale on gender based discrimination. His decision and ruling was on gender NOT sexual orientation, and he used a rational basis test as the standard of review, which by the way was the correct review. problem is that in order for his ruling to prevail he needed to show that gender was in fact being discriminated against, and it is not, and was not. The plaintiffs in prop 8 needed to show that gender was the basis of discrimination, and in order for that to survive 14th scruitiny they needed to show that both men and women were being discriminated against. However, they failed to do that, men and women are equally restricted from marrying someone of the same sex. Now if men could marry men, and also women, and women could only marry men, then THIS would be cause for strict scrutiny and a proper 14th challenge. Another way of looking at it is to say that both men and women are being discriminted against, but the law doesn't work that way.
“When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” - P. J. O’Rourke
“Socialism is great until you run out of someone elses money” Margaret Thatcher
If SCOTUS upholds this ruling does that mean that all state bans on SSM will be overturned?
"There is an excellent correlation between giving society what it wants and making money, and almost no correlation between the desire to make money and how much money one makes." ~Dalio
Here's how a far-right conservative sees the 9th Circuit Court of Appeals: