California Prop 8 To Federal Courts???

Just wondering with the legal challenges to the passage of California’s Prop 8, being heard by the California State Supreme Court, I was wondering if there was any way it could be appealed into a federal court.

I put the question here, 'cause I’m not interested in whether it is upheld or rejected but rather would there be any way if Prop 8 was upheld to appeal into the federal courts or if it was struck down to be appealed into a federal court.


Prop 8 is a state, not federal issue and as such would not be heard in federal court. Not to say it can’t happen, it could be challenged in federal court if someone decides that want to contest the constituionality of the issue.

It could be challenged on a number of grounds in federal court, but most are unlikely to prevail. Something along the line of this is most promising:

So far as I understand, most organized same-sex marriage advocates have been careful to keep the issue OUT of federal court, in an effort to avoid a precedent-setting adverse ruling.

In order for an issue of state law to be heard in federal court, there must be a federal question of some sort. IOW, you have to say, “Prop 8 violates federal law because XYZ” or “Prop 8 violates the US Constitution because of ABC” or something like that.

If you can’t come up with such an argument, then it is solely the domain of the state courts. Naturally, the federal courts themselves determine what does and does not constitute a federal question.

The answer to the OP is yes – once the California Supreme Court rules on the challenges, the loser can appeal the state court ruling to the U.S. Supreme Court, but as friedo notes, only on issues of federal law. So if the Plaintiffs say Prop 8 violates both the California guarantee against removal of vested rights and the U.S. Constitution’s Equal Protection Clause, and the California Supreme Court disagrees, the Plaintiffs can then appeal only the ruling only as to the Equal Protection Clause. The U.S. Supreme Court won’t challenge the California court’s interpretation of its own state constitution. (There’s a quibble here about when the U.S. Supreme Court assumes a state court is interpreting state or federal law, but it’s not germane to this discussion.)

Note that all of the commonly suggested challenges to Prop 8 under federal law are probably losers under current understandings of the guarantees of the U.S. Constitution.


Two grounds. First that it possibly violates the equal protection clause of what was it the 14th amendment. Second for people married in MA or CN it may (and IMHO does) violate the full faith and credit clause. Unfortunately, the courts have been very reluctant to apply that clause.

Eventually, the same logic that applied in striking down the anti-miscegenation laws could be applied here. But that was a very different court and I even wonder if such a law would bs struck down today. Not that any state, even Mississippi, would want to revive it, I hope.