The Supreme Court is expected to rule on Proposition 8 next week. There are a number of possible outcomes.
(If you’re confused about any of this, start by reading the summary of what you need to know about Prop. 8 at the Supreme Court.)
- The U.S. Supreme Court could affirm the 9th Circuit decision that invalidated Prop. 8’s constitutionality. Such a ruling would legalize same-sex marriage in California. It could potentially go beyond California and legalize same-sex marriage nationwide.
- The court could dismiss the case, by ruling that the petition for review should never have been granted. This would leave the 9th Circuit Court’s decision that Prop. 8 is unconstitutional as the final binding decision. This ruling, however, was narrowly defined and would likely pertain solely to California.
- The court could hold that the Prop. 8 backers lack standing under the federal law to appeal. This would vacate the 9th Circuit’s decision, leaving U.S. District Court Judge Vaughn Walker‘s ruling that Prop. 8 is unconstitutional as final, making same-sex marriage legal in California. However, this would leave open the possibility that Prop. 8 supporters could challenge whether that ruling applies statewide.
- The court could reverse the 9th Circuit, upholding Prop. 8 as valid. This would mean that same-sex marriage would continue to be illegal in California. However, with public opinion on same-sex marriage shifting, according to Pew, it is likely that supporters of the issue would put a counteracting proposition on the ballot in the future.
The third of the four scenarios, in which the court rules that the proponents lacked legal standing to challenge Walker’s decision, is believed to be the most likely. UC Davis law professor Vikram Amar told KQED’s Scott Shafer last week that a broad decision declaring a fundamental, nationwide right to same-sex marriage is highly unlikely.
“It’s very rare for the court to invalidate the laws of two-thirds or three-quarters of the states,” Amar said. He noted that when bans on interracial marriage were struck down in 1967, only 16 states had such laws — compared with the 35 that now ban gay marriage.
Also from that report by Scott Shafer:
At oral arguments in March, there seemed to be little appetite – even among the most liberal justices — for a momentous decision in support of gay marriage.
And there are two ways for the court to avoid that legal question altogether. They could simply dismiss the case, allowing the 9th U.S. Circuit Court decision to stand. (In fact, during oral arguments, Justice Anthony Kennedy mused, “I just wonder if the case was properly granted.”)
Or, more likely, Amar said, the court will declare that Prop. 8 proponents lacked legal standing to appeal Judge Walker’s decision.
“If the case is decided on standing grounds, the thing we should focus on right away is what, if anything, the court says about the follow-on process,” Amar said.
If the court decides to rule on the issue of standing, then a number of other things could happen next.
The court will likely include some guidance on how the ruling can be interpreted legally, if it applies statewide or just in the counties where the lawsuits were filed — or even just to the defendants. While many believe that a ruling on standing would make same-sex marriage legal throughout California, others believe that it would apply only in the counties where the suits were filed (Alameda and Los Angeles), and in San Francisco, which intervened in the case. Because of these complications, most counties have said they will look to the state for direction.
Although county clerks are responsible for issuing marriage licenses in California, they will likely turn to the Department of Public Health Vital Records on how to proceed, said Cathy Darling Allen, president of the California State Association of Clerks and Election Officials and the clerk in Shasta County.
“I believe we will receive some guidance,” Allen told KQED’s Shafer.
However, a department spokesperson told Shafer that they will, in turn, look to the governor’s office for guidance — creating a game of telephone in the wake of the ruling. Evan Westrup, a spokesperson for Gov. Jerry Brown, said the governor’s office wouldn’t deliberate on what guidance they will give until after the court’s ruling. “Lots of interesting scenarios, none of which we’d publicly comment or speculate on at this point,” Westrup said by email.
And some counties may challenge a statewide rule in any event. While same-sex marriages were legal in 2008, in the time between when the court struck down Prop. 22 and the passage of Prop. 8, several counties, including Kern, Siskiyou and Butte, refused to perform civil ceremonies. They only issued the licenses.
According to Allen, that resulted in many more couples from those counties rushing to Shasta County to have their ceremonies performed. Officials in Kern County have not said how they will proceed this time if Prop. 8 is struck down.
Interestingly, the technical challenges to performing same-sex marriages — i.e., changing the license forms and naming conventions to be gender-neutral — were all addressed in 2008 when about 18,000 same-sex couples were married before Prop. 8 passed, said Allen. That means this time, they’ll be “ready to go,” she said.
If Prop. 8 is struck down, officials have said there could be a 25-day waiting period before marriages resume, meaning the earliest that ceremonies could be performed would be mid-July. However, even this is uncertain. Most cities and counties are preparing to be ready to issue a flood of licenses on Day One, should same-sex marriage be legalized. According to NBC Bay Area, San Francisco has even begun training volunteers to oversee impromptu weddings.
“We anticipate that it could be as much as 200 people who come down to City Hall,” said San Francisco County Administrator Naomi Kelly. “We just want to make sure that anyone who wants to get married on that day can.”
To prepare, the city is training dozens of volunteers to become deputy clerks. The volunteers are made up of mostly city employees giving up time to learn everything from how to administer vows to inputting legal data into city computers. Some will work as greeters, helping the betrothed navigate the winding matrimonial process.