Update Wednesday: We’re live blogging today’s decisions here.
The U.S. Supreme Court did not release rulings on either Proposition 8 or the Defense of Marriage Act today. The court said it will convene again tomorrow at 7 a.m. for the last time this term to issue its remaining decisions. Presumably, those will include rulings on the same-sex marriage cases.
While you wait, here are some possible outcomes regarding the Prop. 8 case, in which the issue before the court is whether California’s 2008 voter-approved same-sex marriage ban is as unconstitutional as two lower courts said it is ….
- 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 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, unless another state proposition overturns Prop. 8.
Many legal analysts do not think the court is likely to create a broad right to same-sex marriage in its ruling. “It’s very rare for the court to invalidate the laws of two-thirds or three-quarters of the states,” UC Davis law professor and SCOTUSblog analyst Vik Amar told KQED’s Scott Shafer earlier this month. He noted that when bans on interracial marriage were struck down in 1967, only 16 states had such laws — compared with 35 that now ban gay marriage. And as Shafer wrote, “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.”
If the court does strike down Proposition 8, for whatever reasons, same-sex marriages could begin again in California in mid-to-late July, according to San Francisco City Attorney Dennis Herrera’s office. (San Francisco was an intervenor in the case on the plaintiff’s side.)
It should also be noted that polls have shown a remarkable swing in favor of same-sex marriage since voters approved Prop. 8 in 2008. So, even in a worst-case scenario for those who support same-sex marriage — that California’s ban is upheld — a ballot initiative in 2014 could well overturn the law. Last week state Senate President Pro Tem Darrell Steinberg said the Senate may act to place a repeal of Prop. 8 on the ballot should same-sex marriages remain illegal in the state. Such a measure would require a two-thirds vote of the Legislature for it to be placed before voters. LGBT advocates could also place a measure on the ballot.
DOMA is a 1996 federal law that defines marriage as between only a man and a woman. It prevents those who are in same-sex marriages from receiving a host of federal benefits, such as the ability to file a joint tax return. In the case before the court, a widow 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 here.
In 2011, the U.S. Census Bureau said that more than 28,000 California same-sex couples reported being married. From June to November 2008, in between the time the state Supreme Court overturned Proposition 22, which restricted marriage to opposite-sex couples, and the passage of Prop. 8, about 18,000 same-sex marriage licenses were issued in California. The state Supreme Court later ruled that these marriages were not invalidated by Prop. 8.