The statements at issue:

“Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for Supreme Court ‘repudiation’ of the Korematsu v. U.S. decision and other Japanese internment rulings.  Such repudiation, it if occurred, would be unprecedented.  An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading.”

– George F. Will, syndicated columnist, in an op-ed story in The Washington Post on April 25,”When fear trampled citizenship.”

“A public statement by the court of the repudiation of the internment cases … would fall within the court’s inherent power to ‘correct its records’ in these cases. The fact that the court has never before issued such a ‘repudiation’ statement is no bar to the authority of the justices to take such an action.”

– Peter Irons, in the essay cited by George Will.  The essay is titled “Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases,” available at this website. 

We checked the Constitution, and…

However wrong-headed, or even worse, a decision by the Supreme Court might be, either when issued or when assessed in later years, the Constitution simply does not give the justices the authority to issue public statements condemning such a past ruling. That is a political act, and it would be a direct contradiction of the limits of Article III for the court to indulge in such a public statement.

That is not to say that the court cannot show its profound disagreement with a prior ruling that it has made, but there is a way to do that without the court becoming a public critic of its own precedents. The way is to overrule an offending precedent when the occasion arises for such a decision to be tested anew.

Note that phrase: “when the occasion arises.” That, constitutionally speaking, is limited to an opportunity for the court to rule on a new case that actually involves what the court often calls a “live case or controversy” and the past ruling is claimed by one side or the other to affect or control the outcome.

The court itself has understood since its very early years that its function is to decide actual lawsuits, in which there are at least two sides in conflict and in which the legal adversaries have something real at stake. That is a tradition that the court itself established in 1793.

President George Washington, through his secretary of state, Thomas Jefferson, asked the court to provide legal advice to the president on how to interpret treaties with Britain and France about American obligations toward them during the French Revolution, when the United States was seeking to remain neutral. Politely and with an apology, the court declined to offer any advice, saying that to do so would violate the separation of powers that the Constitution requires among the three branches of the national government.

Separation of powers of the government, a concept traced to the French philosopher Baron de Montesquieu and embraced fervently by James Madison in the Founding era, was considered to be absolutely vital to prevent one branch of the government from becoming despotic. Each branch is to act as a check upon each other in order to preserve liberty, the concept holds.

Because each of the branches of the national government has grown so powerful, it may be quite easy to assume that they have very wide discretion about how they use their own grant of power. And it is perhaps easy to forget that a basic principle the Founders applied devotedly was that they were creating three branches with limited, not open-ended, authority.

Why shouldn’t the Supreme Court be allowed simply to put out what would amount to a press release, repudiating its World War II–era decisions upholding the government’s power to put citizens into detention camps out of fear that they would be disloyal during wartime? The answer is simply that a press release does not decide a lawsuit, and that is all that the court can do.

In the brief quotation above from Peter Irons’ essay, he suggested that the court had “inherent power” to “correct its records.” But the principle of separation of powers simply does not allow for unspecified and ungranted “inherent” authority by any of the branches of the federal government. “The Judicial Power of the United States”—the words that open Article III—do not confer on the Supreme Court or lower federal courts the authority to issue advisory opinions, outside of the four corners of a lawsuit.

Last year, the Justice Department learned that it had made a significant mistake in defending one of the arguments that it had used to help it win a case about immigration and deportation laws. That is precisely what happened in the World War II Japanese internment cases; indeed, the government lawyers in those cases explicitly withheld information that contradicted what they had told the court; that information only came out later.

In the incident last year, the Justice Department admitted its mistake to the court. But the court did nothing at all in response. It simply accepted the admission, and let its prior ruling stand. If a new case raising the same issue were to reach the court again, the justices might well cast aside their precedent, and cite the government mistake as its reason. But, again, that could come only in reaction to a specific case.

The constitutional reality is that the World War II Japanese-American precedents have been condemned in the only way that the federal courts can do: in the context of an actual legal proceeding. Many years after those cases were decided, two of the individuals who had been imprisoned and found guilty of violating the exclusion rules—Fred Korematsu and Gordon Hirabayashi—were allowed to challenge their convictions using a little-used but perfectly legal method, and their convictions were overturned.

Had those cases gone to the Supreme Court (they did not, because the government at the time did not appeal), that would have given the court a chance to overrule its precedents. It is not likely to have another chance like that.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Source: Chris Walton (Flickr).

The DOMA case doesn’t involve a basic question about an equal right to marriage, since the couples who challenged that law are already legally married in their states.

The hearings concluded early Wednesday afternoon. Listen to the official audio from today’s oral arguments here (audio will be available Wednesday afternoon).

Early reports from The Wall Street Journal indicated that the court’s conservative justices were critical of the Obama administration’s refusal to defend DOMA in court.

In one exchange, Chief Justice John Roberts said the Obama administration should have the “courage” to defend DOMA, rather than let the Supreme Court decide who has the ability to defend the law.

But Justice Kennedy, a key swing vote on the court, also voiced concerns about the ability of the federal government to define marriages for the states.

SCOTUSblog publisher Tom Goldstein said on his Twitter account that he believed after seeing the arguments that there was an 80 percent chance the court would strike down DOMA.

The question at hand is if Congress has the constitutional power to deny married same-sex couples benefits given to opposite-sex couples under about 1,100 federal programs or services.

DOMA was passed by Congress in 1996 after fears that Hawaii’s Supreme Court was considering the constitutionality of same-sex marriages. The federal benefits denied by DOMA to married same-sex couples include the right to file a joint tax return and to obtain a Social Security death benefit.

The case is United States v. Windsor. Edith Windsor is contesting a requirement that she pay $363,000 in federal estate taxes inherited from her late same-sex married partner, which she wouldn’t have been obligated to pay if she were married to a man.

On Tuesday, the court heard arguments about Proposition 8, a law in California barring same-sex marriages that was later overturned by two other courts.

Like Proposition 8, the justices were expected to hear arguments in the DOMA case about whether the case had legal standing and could even be considered by the high court.

The Obama administration decided not to defend DOMA in court in 2011, and instead several Republican congressional leaders pursued the defense.

Under the Constitution’s Article III, the court must have before it a live “case or controversy,” with a party on each side with a direct, not a theoretical, interest in the outcome.

In the DOMA case, Republican leaders have challenged the right of the federal government to appeal, and the federal government has challenged the GOP leaders’ right to make a defense of DOMA.

What’s unknown at this point is if the Supreme Court, when it issues rulings in late June, will take any stance on the same-sex marriage issue, aside from agreeing to hear the DOMA and Proposition 8 cases.

Some observers of the Proposition 8 hearings on Tuesday believed the court could say in June that the Prop 8 case didn’t have standing, and it would be invalidated or returned to a lower court.

But others believe the court could have a logic that is shared between the Prop 8 and DOMA cases.

Still others point back to last year’s instant analysis of the Supreme Court’s hearings on the Affordable Care Act. In March 2012, pundits were forecasting the ACA would be struck down by the justices, based on their line of questioning in the hearings. But in June 2012, most of the ACA stood intact after the court’s ruling. Two of the attorneys in court on Wednesday for the DOMA case also argued the ACA case last year: U.S. Solicitor General Don Verrilli Jr. and former Solicitor General Paul Clement.

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Source: Fibonacci Blue (Flickr).

Nearly five days before the Supreme Court would be meeting this week to consider the historic constitutional controversy over same-sex marriage, a line of hopeful spectators had begun forming at the foot of the court’s steps. In the unusually sharp cold of a March weekend, only the hardy–or a hired place-keeper–would stick it out, since the court’s chamber will accommodate fewer visitors than a small-town basketball gym.

Expectations ran high. The court, except for a fleeting glimpse at same-sex marriage 41 years ago (a glimpse that passed with little notice), will be examining that issue closely for the first time. Two fully developed cases–one involving state power over marriages, the other federal power–will be heard Tuesday and Wednesday mornings before a packed chamber. By early afternoon each day, audiotapes will be released by the court (there is no television coverage). Aside from the written pleas of those directly involved, the cases have drawn close to 150 briefs by friends-of-the-court, trying to help shape the outcomes.

It has been just short of 44 years since the gay rights movement had its now-acknowledged beginning with police raids on a gay bar, the Stonewall Inn in New York’s Greenwich Village, prompting a sturdy response from the bar’s customers and their sympathizers. And now, in the decorum of a courtroom, that movement’s most ambitious pursuit gets its ultimate constitutional test.

Last September, almost at the moment that the court began thinking about same-sex marriage, another institution that had long been a hallmark of mainstream respectability–the U.S. military–became fully open to gays and lesbians after congressional repeal of the “don’t ask, don’t tell” policy went into effect. And last November, about a month before the court would accept the same-sex marriage issue for review, elections on that question for the first time began going in favor of marriage equality.

A tide, cultural and political, seemed to be running.

As this week’s constitutional hearings unfold before the justices, the score is still 41 to 9 among the states: 41 of them continue to ban it, while nine, plus Washington, D.C., allow it.

The court has the option of making the score 50 to 0 in a sweeping decision, or two decisions. And, given the intensity of the written arguments already put before the justices, there are some on each side who foresee that possibility, with dread or elation.

That, in fact, was the ultimate aspiration of two same-sex couples in California when, in May 2009, with the help of two of America’s highest profile and deeply experienced lawyers, they began a lawsuit against California’s Proposition 8 in a federal courthouse in San Francisco. The state’s voters had approved that flat ban on same-sex marriage in November 2008 to overturn a state Supreme Court ruling allowing gays and lesbians to marry (which 18,000 couples had done in the meantime).

The two couples won their case in lower federal courts, first in a very broad ruling from a federal judge, and then in a narrower decision by an appeals court, and now those decisions are set for review on an appeal filed by the sponsors of Proposition 8. That is the case the justices will hear on Tuesday.

On the following day, the court will hear the federal government’s appeal in a test of the Defense of Marriage Act–a law passed by Congress in 1996 to declare, for the first time, that some 1,100 federal laws or programs that provide marital benefits are confined to married opposite-sex couples. Same-sex couples legally married under their own state laws would be denied benefits, such as the right to file a joint tax return or to obtain a Social Security death benefit.

Is the court ready to decide that the right to marry, which it has long treated as a fundamental constitutional right, must be extended to gays and lesbians? Such a ruling, depending upon its sweep, could mean that no state could any longer reserve marriage for opposite-sex couples, and that all federal marital benefits had to be distributed equally to married same-sex couples.

The chances, though, are not very strong that the court is ready to go that far. In fact, it has given itself what amounts to a way out of any ruling on the constitutionality of either Proposition 8 or DOMA. In each of the cases, it has raised an additional question: does the court have the constitutional authority to decide either one of them?

Under the Constitution’s Article III, a federal court must have before it a live “case or controversy,” with a party on each side with a direct, not a theoretical, interest in the outcome. In the Proposition 8 case, that is an issue because the right of the sponsors of the measure to be in court has been challenged by the other side. In the DOMA case, the right of the federal government to appeal has been challenged by the Republican leaders of the House of Representatives, because the government got what it wanted in lower courts–a decision to strike down DOMA’s benefits restriction.  The government, in turn, has challenged the GOP leaders’ legal right to make a defense of DOMA.

Even assuming that those potential obstacles are overcome, it is far from a certainty that there are five members of the court who would vote to strike down either the California law or DOMA. As is so often the case, the outcome could turn on how Justice Anthony M. Kennedy reacts to the challenges, since there is a reasonable prospect that the other eight justices might split evenly.

A decision against Proposition 8 could be on the narrower basis that the appeals court in that case had reached, and that might mean a California-only ruling. And a decision against DOMA could be on a states’ rights basis, on the premise that marriage is something that the states traditionally have controlled, and that might say very little about marriage equality as a national matter.

By early afternoon Tuesday, and again by early afternoon Wednesday, the first signs may well have emerged from what was said from the bench on those mornings.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statement at issue:

“The Department of Justice’s decision to cease defense of and affirmatively attack DOMA’s constitutionality is unprecedented in Executive Branch history. Although the Executive Branch had successfully defended the law for fifteen years, and ample authority supports DOMA’s constitutionality, the Department of Justice’s attempted nullification of an Act of Congress passed with overwhelming bipartisan support undermines both the Legislative function and the Judiciary’s role as final arbiter of a law’s constitutionality.”

 – Edwin Meese III and John Ashcroft, former U.S. Attorneys General, in a legal brief they have sent to the Supreme Court and that awaits acceptance in the file of the case testing the constitutionality of the Defense of Marriage Act of 1996 (DOMA).

“In the rare event that the President concludes that a federal statute conflicts with the Constitution…, the Executive confronts a dilemma: enforcement of one law will cause it to violate a higher law. … In both Republican and Democratic administrations, [there have been] infrequent instances where it was determined that a statute should not be defended, where the Executive has concluded that no reasonable argument supports the statute’s constitutionality.”

– Comments in a legal brief by 13 former White House lawyers and top legal advocates in the Department of Justice, already on file in the DOMA case.

We checked the Constitution, and…

Article II, defining the “executive power” of the national government, says that the president “shall take care that the laws be faithfully executed.” But the Constitution itself is obviously one of the laws undoubtedly within the president’s care, and the presidential oath makes that a binding duty. What does the occupant of that office do if legal advisers claim that a law passed by Congress is unconstitutional? Does it still get “faithfully” enforced?

Those are not abstract constitutional arguments, because the answer to them may determine whether the Supreme Court has the authority to rule on the validity of the 1996 law that denies federal benefits to couples who are already legally married under their own state laws–the Defense of Marriage Act. The court itself raised the issue of whether it could go ahead and decide that case, since the case was appealed by the Obama administration after it stopped defending DOMA, and then its ensuing challenge won in lower courts.

The court has another option, even if it concludes that President Obama’s government had no right to appeal. It can allow the case to go forward by granting the Republican leaders of the U.S. House of Representatives their request to stand in for the White House to defend DOMA against the New York City woman who was allied with the government in the challenge to that law. The court has also told lawyers to argue whether the GOP leaders have a right to be in the case. Without someone on each side of the case, the Constitution’s Article III says there is no case for the courts to decide. DOMA’s legal status would then be in limbo, at least for some time.

But, before all of that gets sorted out, the justices will have to at least ponder the fundamental issue of what Article II means in commanding the president to carry out enacted laws. Behind that question lies another: given the idea of separation of powers, does the court have the authority to tell the president what constitutes “faithful” execution? In other words, can it tell the White House how to interpret the presidential oath? Could it command enforcement of a law that the president has concluded is invalid?

So far, the court has been careful to make clear that it is going to explore only its own jurisdiction to hear the Obama administration’s appeal. That is a question under the judiciary provisions of Article III. But, as the two briefs noted above indicate, there is a full-scale debate going on among lawyers in the case about the scope of the president’s duties under Article II.

One thing on which even those lawyers agree, though, is that in general the president has no choice but to defend laws that Congress has passed through the regular legislative process.  The dispute arises over the exceptions to that obligation, and over what history suggests as an answer.

Former Justice Department leaders Meese and Ashcroft have argued that the current administration is trying to set a new precedent. And they clearly characterize it as illegitimate: “The Department is attempting to use the judiciary to achieve what it cannot achieve through proper legislative channels. The government’s refusal to defend DOMA is fundamentally a policy disagreement with the Congress that passed the law and the President who signed it.” They want the case to go away, if the House GOP leaders are not allowed to carry on the defense–the option they prefer.

The former White House lawyers and top-ranked legal advocates from the Justice Department see what the administration has done as quite legitimate. They do not make light of the challenge that they suggest President Obama had to resolve. “Determining the proper course of action when a statute and the Constitution appear to conflict is among the most serious duties of the president and of the attorneys advising him,” they wrote. In the case of DOMA, that brief contended, the administration “acted appropriately”–that is, continue to enforce DOMA’s ban on benefits to married same-sex couples, while laying out in court why they felt they could not continue to defend it. There is still a dispute between the administration and the New York City woman over her claim to a refund on the federal estate taxes she paid after her same-sex spouse died, so the case should go on, that document suggested.

While much of the public may be focusing on whether same-sex couples will or will not gain a right to marry when the Supreme Court decides that case and another pending lawsuit, some other core issues may add to the constitutional drama along the way.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Kagan was later confirmed in August 2010 by the U.S. Senate, and among the Republicans voting for Kagan’s appointment was Richard Lugar, who lost a primary election this week.

According to Kagan’s official biography on the Supreme Court Web site, she took her oath on August 7, 2010.  She replaced Justice John Paul Stevens, who had retired in June 2010.

Article III, Section 1, of the Constitution established the Supreme Court.

Article II, Section 2, allows the president to nominate a Supreme Court justice, with the later consent of the Senate.

Kagan’s nomination went relatively smoothly.

Since 1789, about 20 percent of Supreme Court nominations by the president have been rejected or saw a candidate withdraw for various reasons.

The last presidential nominee to withdraw was Harriet Miers, who was nominated by President George W. Bush in 2005. He then nominated Samuel Alito, who was confirmed in early 2006.

News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

The Constitution and … cell phones

This week the New York Times revealed internal documents detailing how local law enforcement has extensively used cell phone data to track citizens. This trend has prompted questions about the appropriate balance of helping law enforcement do its job and providing oversight to prevent infringement on civil liberties.

The Constitution and… teens on Twitter

After posting a profanity-packed tweet, 17-year-old Austin Carroll faced expulsion from his high school. Carroll argues that his words weren’t directed anyone and didn’t involve the school, and that he wasn’t using a school computer or network–he posted the tweet while at home. His case is one of several in recent years that have prompted difficult questions about the conflicting interests between school administrators’ attempts to monitor students’ online activities with the students’ First Amendment free speech rights and Fourth Amendment protections against unreasonable search and seizure.

The Constitution and… strip searches

The Supreme Court ruled 5-4 this week that any person arrested and held temporarily for any offense can be subjected to a strip search, whether or not there is a reasonable suspicion that the person is dangerous or carrying contraband. Learn more about the case from Lyle Denniston’s analysis.

The Constitution and… President Obama’s civics lesson

On April 2, President Obama stated:

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. … [I would] just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and—and passed law.”

Many people quickly pointed out that President Obama’s statements reflected a misunderstanding of the separation of powers of the branches of government. Yes, the Supreme Court justices are appointed, not elected–but that’s consistent with Article III of the Constitution. And yes, the Supreme Court can overturn a law if they so choose–since the 1803 ruling in Marbury v. Madison, the Supreme Court has claimed the authority to determine the constitutionality of acts of Congress.

The president’s critics were quick to point out the irony that he taught law, including constitutional law, at the University of Chicago. The White House later attempted to clarify his comments.

The Constitution and… same-sex marriage

Several same-sex couples have filed a lawsuit challenging the Defense Against Marriage Act. According to the 1996 law, the federal government does not recognize same-sex marriages, even if they are legal in a state, for immigration purposes. The couples argue that because of the equal protection guaranteed in the Constitution, their same-sex marriage should qualify for their green card application and other immigration purposes.

Further reading from Constitution Daily

Constitution Check: Is the Roberts Court driven by politics? — Lyle Denniston

The secret life of the Commerce Clause — Carl Cecere

Constitution Check: Is there a constitutional right to “stand your ground”? — Lyle Denniston

Holly Munson is the Programs Coordinator for Public Engagement at the National Constitution Center.

Sandra Day O'Connor being sworn by Chief Justice Warren Burger 09/25/1981.

Today is the 82nd birthday of retired Supreme Court Justice and a longtime friend of the National Constitution Center, Sandra Day O’Connor.

Back in September 1981, Justice O’Connor made history when she was sworn in as the first female member of the Court. She served for over 24 years and became an influential, moderate voice, casting the key vote in many 5-4 decisions.

The Center was lucky enough to receive a gift from Justice O’Connor when we opened in 2003 – the loan of her first judicial robe, which she wore starting from her first term on the Supreme Court in 1981, for display in our main exhibition. You can see Justice O’Connor’s robe along with other items highlighting the contribution of women to American history when you visit our museum.

Justice O’Connor’s Robe. Photo © National Constitution Center. Artifact on loan from Sandra Day O’Connor (Retired), Associate Justice.

You can also hear from Justice O’Connor herself on our We the People iPod tour, which includes excerpts from a number of special guests and scholars. In the clip below, Sandra Day O’Connor recounts the day that she was sworn in, how justices discuss and decide cases, and the most exciting moment of her first week on the bench – casting her first deciding vote as the first female Supreme Court Justice.

Sarah Winski is an Exhibit Developer at the National Constitution Center; she is currently at work on the Center’s next traveling exhibition, American Spirits: The Rise and Fall of Prohibition, opening in October 2012.

The organization of federal courts at a glance. Image via U.S. Courts/uscourts.gov.

Last week the U.S. Ninth Circuit Court of Appeals made headlines with its ruling that striking down Prop 8, the voter-approved measure banning same-sex marriage in California. A lot of people are wondering about the future of same-sex marriage in California and the nation. But some people might also be wondering… what exactly is the Ninth Circuit Court of Appeals?

The short answer is that it is a federal court that covers various cases in California and 10 other western states and territories. And the long answer… well, read on.

Wait, isn’t the Supreme Court the only federal court?

No. In addition to the Supreme Court–the highest court in the land–we have more than 100 federal courts.

How did we get all these federal courts?

It all started with the Constitution. Article III–the section setting up the judicial branch of government and the shortest article in the Constitution–states that “the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” In addition, Article I, the section setting up the legislative branch, states that the Congress may “constitute tribunals inferior to the Supreme Court.” A few years later, Judiciary Act of 1789 divided the country into regions for the organization of the lower federal courts.

How are the federal courts organized?

The United States and its territories are divided into 94 judicial districts, each of which has a trial court as well as a bankruptcy court. Each state has at least one judicial district. There are also two special trial courts with nationwide jurisdiction: the U.S. Court of International Trade and the U.S. Court of Federal Claims.

Those 94 judicial districts are then organized into 12 regional circuits, each of which has an appellate court, or court of appeals. These appellate courts hear appeals from the trial courts located within the circuit’s region. There is also one federal circuit court to hear special cases, such as those decided by the previously mentioned special trial courts.

There are also a handful of other federal courts independent of the judicial branch, including military courts, the Court of Veterans Appeals, and the U.S. Tax Court.

And of course, at the very top is the Supreme Court, the highest court in the land.

How are the federal courts different from the state courts?

State courts generally handle most criminal cases and civil cases involving divorce and child custody, probate and inheritance, real estate, contract disputes, traffic violations and personal injury.

Federal courts generally handle cases involving the constitutionality of a law, federal laws and treaties, ambassadors or public ministers, disputes between two or more states, admiralty law and bankruptcy.

How does a case get to a federal court?

First, there has to be an actual case, or controversy–the court only deals with real, not hypothetical, questions. Second, the plaintiff must demonstrate that they have legal “standing,” that they have been legally harmed somehow by the defendant. Third, the complaint must be one the Court has the authority to remedy. Finally, the case must fall within the federal (as opposed to the state) court’s jurisdiction.

How did Prop 8 make its way to a federal court? Will Prop 8 go on to the Supreme Court?

The Christian Science Monitor summed it up nicely:

California has a long and complicated history regarding the issue of gay marriage. According to the National Conference of State Legislatures, the California Supreme Court in May 2008 ruled that same-sex couples have the right to marry in California. Proposition 8, which amended the state’s constitution to define marriage as between one man and one woman, was passed in November 2008. About two years later, a federal district judge ruled that Proposition 8 violated the equal protection provisions of the US Constitution. The decision was appealed, and the Ninth US Circuit Court of Appeals ruled on February 7, 2012 that the ban violated the Constitution.

What’s next for Prop 8? The measure’s proponents have promised to appeal last week’s ruling, but they have a few options: they could appeal again to the Ninth Circuit Court, asking it to review the case “en banc”–with a full bench of 11 judges rather than the three-judge panel that gave the ruling last week. They could also appeal to the Supreme Court. So Prop 8 might go to the Supreme Court–or it might not.

Many disagree about the issue of same-sex marriage. But it’s easy to agree that the Prop 8 case and the recent ruling by the Ninth Circuit Court provide an excellent reason to learn more about how our federal courts work.

Further Reading…

“Understanding the Federal Courts,” United States Courts (HTML) (PDF)

Holly Munson is the Assistant Editor of Constitution Daily, the blog of the National Constitution Center.