by Rachael Marcus, Kelly Dunleavy O’Mara and Jon Brooks

Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, D.C. (Chip Somodevilla/Getty Images)
Same-sex marriage proponent Kat McGuckin holds a gay marriage pride flag while standing in front of the U.S. Supreme Court in November 2012. (Chip Somodevilla/Getty Images)

We are fast nearing a U.S. Supreme Court decision on Proposition 8, California’s same-sex marriage ban. The court does not announce in advance which opinions it will release on which days, but the last scheduled date for opinions to come down is Jun 27, though the court could stretch the wait out beyond that date. Many SCOTUS observers believe the court will take as long as possible on the same-sex marriage cases, as it often does with potentially landmark decisions.

As you await the decision, here is an updated reposting of our Prop. 8-at-SCOTUS primer, which we first published in March, when the case was heard.


In California’s June 2000 primary, 61 percent of the electorate voted “yes” on Proposition 22, a measure that amended state law to say: “Only marriage between a man and a woman is valid or recognized.” The state Supreme Court overturned the law in 2008 as discriminatory, opening the way for same-sex couples to get legally married in the state. About 18,000 gay and lesbian couples took advantage of the chance to tie the knot.

But the door that had been opened to same-sex couples slammed shut in November 2008, when voters passed Proposition 8. The measure, a constitutional amendment banning same-sex marriage, passed with 52 percent of the vote.

Same-sex marriage advocates immediately filed challenges with the California Supreme Court, which agreed to hear the case, and in May 2009 the court upheld Prop. 8, another blow against same-sex marriage.


Taking the cause up the legal chain, same-sex marriage advocates then turned to the federal court system. Perry v. Schwarzenegger (the governor was named the defendant because he was the head of state at the time, although he did not defend the measure) came before U.S. District Court Judge Vaughn Walker.

Walker overturned Prop. 8 in August 2010, saying that it violated the federal constitutional guarantees of due process and equal protection under the law.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote in the ruling. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Nonetheless, Walker ruled that same-sex marriages should not resume in California until Prop. 8 supporters had a chance to appeal.


The appeal before the 9th U.S. Circuit Court got off to a rocky start in September 2010. Schwarzenegger, then-Lt. Gov. Abel Maldonado and then-Attorney General Jerry Brown declined to defend the same-sex marriage ban in court. Imperial County was the only government entity willing to defend Prop. 8, though the court soon ruled the county didn’t have legal standing to intervene in the case. The federal court then sent the case back to the California Supreme Court for a ruling on whether even Prop. 8’s proponents had legal standing to sue, considering that the state’s publicly elected officials had declined to do so. California’s high court ruled that Prop. 8’s proponents did, indeed, have the right to defend the measure.

The 9th Circuit then took up the case again, and in February 2012 it upheld the district court’s ruling, calling Prop. 8 unconstitutional. It did, however, narrow the ruling considerably, applying it only to California.


Now the battle has reached the U.S. Supreme Court. The justices heard oral arguments March 26. President Obama has urged the Supreme Court to overturn the same-sex marriage ban.

Oral arguments touched on a number of issues: whether Prop. 8 proponents have standing to bring the case, how to define marriage, if procreation is connected to marriage and what the Constitution says.

In the meantime, other states have blazed their own trail on same-sex marriage. Currently, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Washington, Vermont and Washington, D.C., allow gays and lesbians to marry.

There are multiple possible outcomes of the Prop. 8 case. The court could potentially issue a sweeping ruling that overturns all same-sex marriage bans in the U.S.  However, what is more likely, according to many legal analysts, is that the justices will rule in such a way as to restrict the impact of their ruling to California, allowing other bans on same-sex marriage to stand.

And if the Supreme Court upholds Prop. 8, the decision would not affect the laws in states that already allow same-sex marriage.

The justices could also decide that Prop. 8 proponents lacked standing to bring the case, which would vacate the 9th Circuit’s decision and uphold Judge Vaughn Walker’s ruling that Prop. 8 is unconstitutional. That could leave the issue open to further appeals, with the ban’s supporters arguing that the District Court ruling should not apply statewide


The Supreme Court heard the arguments on the federal Defense of Marriage Act the day after Prop. 8 arguments. DOMA was signed into law by President Bill Clinton in 1996 to define marriage as between a man and a woman. (Clinton has since said he believes the law is unconstitutional.) DOMA consequently denies legally married same-sex couples a host of federal benefits that are available to married opposite-sex couples, such as the ability to file a joint tax return.

The case before the Supreme Court involves a widow who was forced to pay $363,000 in inheritance taxes after her female spouse died, a liability she would not have incurred if she’d been married to a man. A federal appeals court ruled that provision of DOMA was unconstitutional. Another provision, requiring states to recognize only opposite-sex marriages performed in other states, is not at issue.

Two hours of oral arguments touched largely on what constitutes equal protection under the Constitution, states’ rights, and why the president chose not to uphold the law.

If the court upholds DOMA, not much will likely change. But if DOMA is ruled unconstitutional, the federal government will have to recognize the same-sex marriages performed in the states where it is already legal, giving those married couples all the same federal rights and benefits as opposite-sex married couples.


While the cases were being decided, same-sex marriages have not resumed in California, but those performed in 2008 between the overturning of Prop. 22 and the passage of Prop. 8 are considered valid in the state. A Field Poll released last month found that 61 percent of likely voters now support same-sex marriage. That’s the same percentage that voted against it just 13 years ago.

Which means that even if Prop. 8 is upheld, we are likely to see another ballot, this one legalizing same-sex marriage in California, in 2014.

Prop. 8 at the Supreme Court: What You Need to Know 20 June,2013KQED News Staff

  • Katie

    I like how these decisions talk about allowing gays and lesbians to marry, but what about bisexuals who want to marry someone of the same sex? Trans* people? There are more groups that the “gays and lesbians” that have a stake in this, but they aren’t discussed.

  • Mark Spears

    NAMBLA prepares for a milestone victory with the democrat supreme court overturning Prop 8…despite what the people voted for. Pedophiles move comfortably closer to our children with this decision. I hope all you liberal bastards are happy with your choice,,,maybe it will be your child next.
    The North American Man/Boy Love Association (NAMBLA) is a pedophile and pederasty advocacy organization …in the United States that works to abolish age of consent laws criminalizing adult sexual involvement with minors,[2][3] and for the release of all men who have been jailed for sexual contacts with minors that did not involve coercion.[2][4] Some reports state that the group no longer has regular national meetings, and that as of the late 1990s, to avoid local police infiltration, the organization discouraged the formation of local chapters.[4][5] Around 1995, an undercover detective discovered that there were 1,100 people on the rolls.[4] As of 2005, a newspaper report stated that NAMBLA was based in New York and San Francisco, and held an annual gathering in New York City and monthly meetings around the country.[4]

    • PLOVV


    • M

      Lmao, what an idiot!

      • Dr. D

        I think you protest just a little too much Mr. Spears?

    • Dr. J

      Katie, you make an excellent point.

      It would be nice if the media and others made an effort to reference all the people who stand to gain from marriage equality when discussing this issue. Such as those in the LGBTQQI community, their heterosexual friends and family who want to see them treated fairly, and quite frankly anyone in favor of greater equality in the United States and the world.

      Mark, your ignorance and bigotry are both staggering and pathetic…

      If you’d actually taken the time to research the issue you’d have your facts “straight” and recognize that the overwhelming majority of sex offenders (including those who target/violate a victim of the same sex) are heterosexual. Contrary to right-wing propaganda, and popular myth, pedophilia is not an LGBT phenomena. The NAMBLA organization and its activities have absolutely no bearing in any conversation on bringing marriage equality to lawful same-sex couples. It’s a completely unrelated issue, particularly because neither the Prop 8, nor the DOMA cases, seek to influence America’s age of consent laws in any way.

      And while we’re on the topic allow me to preempt the cliche and false argument that striking down Prop 8 and DOMA will “destroy the institution of marriage” by way of a slippery slope, opening the floodgates for people being able to legally: marry minors below the age of consent without parental permission, engage in polygamy, marry their parent or sibling, mary an animal/their pet, or marry an inanimate object like their car or toaster. History has shown these ridiculous assumptions to hold no merit, as none of these things occurred when interracial marriage was legalized (despite many arguing they would happen during the time of the Loving v. Virginia Supreme Court case). Even if these erroneous claims held a kernel of truth (and same-sex marriage legalization somehow made other forms of legal marriage more likely in the future) they cannot justify the continued discrimination/unequal treatment of a legally recognized minority class.

      I am a heterosexual male and I an wholeheartedly in favor of legalizing same-sex marriage. It’s a simple civil rights issue. Same-sex couples should have equal protection under the law. If they choose to marry they should have access to all the rights, privileges, costs and benefits that can accompany the institution of legal marriage (legal, financial, psychological, etc). Regardless of others level of approval for or comfort with it. In order for true equality the legal union needs to be refereed to as a “marriage”, not a civil union, or a domestic partnership. Valid and reliable research has shown that heterosexual and same-sex couples alike, who have the title and protections of a legally married status, are associated with higher physical and psychosocial health. The “Separate but equal”/second class citizenship measures, while better than outright same-sex marriage bans, are not ture equality and therefore are not enough.

      Religious beliefs, practices, and restrictions (which can, and in most cases will, remain unchanged despite legal recognitions), and societal traditions/”but this is the way it”s always been” have been used to deny equality on a variety or issues in this country (and in others). The US Supreme Court saw fit to see through these thin and flimsy defenses before, in many instances. I hope they have the conviction to do so in the Prop 8 and DOMA cases as well.

  • frenchamericantv

    Just moments ago, the U.S. Supreme Court announced its decision in the Proposition 8 case.

    It is widely being mis-reported that the Court ruled against Prop 8. IT DID NOT!

    Rather, the Court said it could not reach a decision because California government officials refused to defend the law. So it did not rule on Prop 8’s validity.

    In doing so, the Court also nullified the Ninth Circuit’s ruling against Prop 8, which is a great victory in itself!

    So, the voter-passed Constitutional Amendment to protect man-woman marriage remains the law of the land in California, because only an appellate court can strike down a voter proposition statewide.

    But it remains to be seen what California officials will do now.

    Right now we are heading down the steps of the Supreme Court building to a long bank of TV cameras and reporters, to deliver this statement:

    “We are pleased that the Supreme Court has reversed the Ninth Circuit Court of Appeals’ misguided decision that sought to invalidate Proposition 8. For the more than seven million Californians who have seen their vote stripped away from them, little by little, over the course of five years, that decision is gratifying.

    “While it is unfortunate that the Court’s ruling does not directly resolve questions about the scope of the trial court’s order against Prop 8, we will continue to defend Prop 8 and seek its enforcement until such time as there is a binding statewide order that renders Prop 8 unenforceable.

    “We are also especially grateful and humbled by the consistent prayers and support of traditional marriage supporters everywhere throughout this long and difficult case.”

    Please stay tuned for a detailed analysis of the Court’s decision from our official Prop 8 Legal Defense Team. See also coverage by our dedicated co-counsel in the case,Alliance Defending Freedom.

    But for now, let’s be thankful that the Court refused to strike down Prop 8!

    Very truly yours,

    Andy Pugno
    Prop 8 General Counsel

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