Today, a three member panel of the 9th Circuit Court of Appeals ruled, by a 2-1 margin, that Prop. 8 is unconstitutional.
The Court said that Prop. 8 “served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”
This seems to be following the logic in Lawrence v. Texas which overturned laws restricting gay sex since such laws where not aimed at specific activities, but gays themselves. The 9th Circuit panel seems to be using the 14th Amendment in a similar way. Prop. 8 violates the equal protection of US citizens who are gay.
This ruling paves the way for a showdown before the Supreme Court. While the Supreme Court leans conservative, I think that the active presence of Ted Olson in fighting against Prop. 8 shows that conservative legal elites are not unified on the matter of same-sex marriage.
It will be interesting to see what the Supreme Court does since their ruling may impact measures similar to Prop. 8 (with many being much more restrictive) that exist in many states.