by Rachael Marcus, Kelly Dunleavy O’Mara and Jon Brooks
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.
SAME-SEX MARRIAGE IN CALIFORNIA: A BRIEF HISTORY
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.
PROP. 8 IN THE FEDERAL COURTS
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.
PROP. 8 BACKERS 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.
PROP. 8 IN THE U.S. SUPREME COURT
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
WHAT ABOUT DOMA?
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.
GAY MARRIAGE IN CALIFORNIA TODAY
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.