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U.S. Supreme Court and Proposition 8: End of the Road or Next Chapter?

| November 28, 2012
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The next and final chapter in the legal saga of Proposition 8, California’s ban on same sex marriage, is set to begin Friday morning at the U.S. Supreme Court. And unlike the previous legal skirmishes in which this measure has been mired for four years, this one will take place behind closed doors.

Bob Sodervick of San Francisco protests Proposition 8 outside the Ninth Circuit Court of Appeals in San Francisco earlier this year. (Don Clyde/KQED)

The nine justices will discuss which cases to accept for review — or “grant certiorari” — at a conference meeting in Washington D.C. In addition to this case, now officially known as Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al, the justices will consider several cases challenging the Defense of Marriage Act, or DOMA, including one from California.

Since voters approved Prop. 8 in November 2008, the legal and cultural landscapes have shifted dramatically on same sex marriage. Eight states and the District of Columbia have joined Massachusetts in allowing gay and lesbian couples to marry. President Obama, with a nudge from Veep Joe Biden, endorsed the rights of gay and lesbian couples to wed. His Justice Department stopped defending DOMA — and eight federal courts, including two Courts of Appeal, have struck down DOMA.

Finally, Don’t Ask, Don’t Tell, the military’s ban on LGBT soldiers, sailors and Marines serving openly, was repealed without incident.

Public opinion has also sharply shifted in favor of gay marriage, and the Republican Party has mostly backed away from using it as a wedge issue in national politics.

This is the environment in which SCOTUS takes up the issue. It has several options and what the justices do depends on how far into it they want to wade.

First, they could take up the case on its merits — and separately from the DOMA cases. Since the Ninth Circuit narrowed Judge Vaughn Walker’s decision considerably, it could be decided with limited scope by the high court — applying only to California without taking up the question of whether marriage is a fundamental right and should be available across the country. They could also combine the Prop. 8 question with any or all of the DOMA cases.

Alternatively, the justices could dodge the issue altogether by saying proponents of Prop. 8 lack legal standing to challenge the ruling. Or they could decline to take it up because it presents no legal conflict with earlier rulings from either district courts or the U.S. Supreme Court.  Either of those two options would allow the lower court ruling to stand and same sex marriages would resume in California very shortly, as soon as next week.

Keep in mind it takes four votes to grant cert. and review a case, and generally the four justices who vote to take it up think they can get a fifth vote (why take it up otherwise?). This is the third time this case has been calendared for conference. It’s been delayed twice before.

Since Justice Kennedy is apparently the key here (as in so many cases, though not in Obamacare as it turned out) the other eight will be sizing up where he stands.

It’s funny how almost mainstream the issue has become. It’s been only four years since California voters eliminated the right for same sex couples to marry — after more than 18-thousand couples had tied the knot. Who would have predicted nine states would legalize gay marriage before California?

For sign posts along the winding road to Friday’s SCOTUS conference, check out my Prop. 8 blog here – and KQED’s hour-long radio special here. Wikipedia also has a balanced summary here.

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