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Same-sex marriage could be headed for Supreme Court

The full Ninth Circuit Court of Appeals in California today declined -- by an apparent vote of 21-4, though we cannot be certain about the numbers -- to take up the challenge to Proposition 8's ban on same-sex marriage in the state.

That leaves the lower court ruling in place, which declared it unconstitutional, and clears the way for supporters of Prop 8 to ask the U.S. Supreme Court to hear the case, a step that the backers can be counted on to take. For now, the appeals court put a 90-day hold on the effect of today's order, which means that no same-sex marriages can be performed for at least the next 90 days. 

As soon as the Prop 8 backers file their papers asking the Supreme Court to take the case, that will extend the stay for as long as it takes the justices to dispose of the case. If the Supreme Court agrees to hear the case, we wouldn't learn about that order until October at the earliest, and the case probably wouldn't be argued until February or March of 2013.

If the Supreme Court declines to hear the case -- and again, we wouldn't hear of the court's order on that until the fall -- then the stay on the Prop 8 ruling would evaporate, and same-sex marriages could again proceed in California.

It's also quite likely that the Supreme Court will be asked in the coming term to hear a related issue, the challenge to the federal Defense of Marriage Act. That's the law that bars the federal government from recognizing same-sex marriages in the states where they are legal.

So the justices might agree to hear both cases, or one of them, or neither. It the Supreme Court takes up just one of the cases, it's more likely to be the DOMA issue, because that involves striking down an act of Congress, which would be a strong factor in urging the court to hear it.