The Supreme Court struck down Colorado's Amendment 2 because it "withdraws from homosexuals, but no others, specific legal protection," wrote Justice Anthony Kennedy in the majority opinion. So, reasoned Reinhardt, Prop. 8 also unfairly singles out gays and lesbians.
It irrationally denies them access to the term "marriage," even though they already have the legal protections of marriage through domestic-partnership laws, and it also takes away a legal right they already had, Reinhardt wrote. (Earlier in 2008, a state Supreme Court ruling had made gay marriage legal.)
Justice Kennedy is seen as the key swing vote on the US Supreme Court, and “I think Judge Reinhardt absolutely wrote a narrow decision as if he were writing a letter directly to Justice Kennedy,” says Jessica Levinson, a professor at Loyola Law School in Los Angeles.
By pointing to Romer v. Evans, Professor Levinson says, Reinhardt “made it sound like this decision [on Prop. 8] followed undeniably from some of Kennedy’s own thinking on that case.”
She also notes how Reinhardt steered clear of any implication of a broader right to gay marriage. “We …. need not and do not consider whether same-sex couples have a fundamental right to marry,” the opinion stated.
This makes it less certain that the Supreme Court will act, agrees Kevin Johnson, dean of the law school at the University of California, Davis. “Since the decision is limited in scope, the chances are not as great of the Supreme Court [taking the case] than if the Ninth Circuit had more broadly decided the issue.”