Unintended Consequences?

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Backers and opponents of Prop. 8 will have their day in court December 6th. The Ninth Circuit Court of Appeals in San Francisco this week outlined how the issues they want both sides to address in the two-hour hearing (expanded from the original one hour).

The hearing will be split in two -- with the first half exploring whether supporters of Prop. 8 -- including Imperial County -- have legal standing to appeal the ruling. In the second hour both sides will argue the constitutional questions -- whether the ban on same-sex marriage passed by voters is prohibited by the U.S Constitution.

What happens if the court decides neither Prop. 8 backers nor Imperial County have standing to appeal? Some legal experts say the Court could simply dismiss the appeal and let Judge Walker's decision stand as is. But UC Davis Law Professor Vikram Amar has a very different take. He thinks this could essentially erase the lower court decision leading to a default judgment in favor of the two same-sex couples -- allowing them to marry. But, Amar says, since this wasn't a class action law suit the judgment would only apply to them, not other gay or lesbian couples who might want to get married.

You can hear my full conversation with him here:

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A subsequent conversation with UC Hastings law professor David Levine suggested a very different scenario: If the plaintiffs are denied standing, the appeal is simply dismissed and Judge Walker's decision stands, most likely applying to all couples who want to tie the knot.
Legal experts think the case will ultimately be decided by the U.S. Supreme Court.
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