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Prop. 8 at the Supreme Court: What You Need to Know

| March 21, 2013
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In California’s June 2000 primary, 61 percent of the electorate voted “yes” on Proposition 22, a measure that amended state law to read, “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.

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)

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.

Gay-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, gay-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, garnering a win for same-sex couples.

“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 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 the Prop. 8, though the court soon ruled it didn’t have legal standing to intervene in the case. The California Supreme court, however, ruled that Prop. 8′s proponents could defend the measure even though state officials declined to do so.

In February 2012, the 9th U.S.Circuit Court of Appeals in San Francisco upheld the district court’s ruling, calling Prop. 8 unconstitutional.

PROP. 8 IN THE U.S. SUPREME COURT

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 or not Prop. 8 proponents have standing to bring the case, how to define marriage, if procreation is connected to marriage, and what the Constitution says.

As California takes the issue up to the Supreme Court, other states have blazed their own trail. Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington, Vermont and Washington, D.C., allow gays and lesbians to marry. On the other side, 31 states have amended their constitutions to ban same-sex marriage.

There are multiple possible outcomes of the Prop. 8 case — none of which will likely settle the issue for good. If the Supreme Court overturns Prop. 8, the decision could overturn all state bans on same-sex marriage—provided the high court says there is a fundamental right to marriage. However, the justices could also rule in such a way as to restrict the impact of their ruling to California, allowing other bans on same-sex marriage to stand.

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 the Prop. 8 proponents lacked standing to bring the case, which would vacate the Ninth Circuit court’s decision and uphold Judge Vaughn Walker’s ruling that Prop. 8 is unconstitutional. That decision could also leave the issue open to more appeals.

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 woman. DOMA consequently denies legally married same-sex couples the federal benefits that are available to married opposite-sex couples. Clinton has since said he believes the law is unconstitutional.

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. If the bill 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 Proposition 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.

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Category: Law and Justice, News

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About the Author ()

Rachael Bale is researcher for The Center for Investigative Reporting and occasional contributor to KQED News and The California Report.  A California native, she has a bachelor's degree in political science from Reed College and a master's degree in journalism from American University. Reach Rachael Bale at rmarcus@kqed.org.
  • Mr. Storman

    It seems this whole mess is nothing more than the use of the words “Marriage”, “Wedding” and the like. The Goverment should get out of that Mess by just focusing on the contract and its benefits. Create another word such as “personal union contract”. Leave the traditional words for religious instutions. Where such words were created.

    • http://www.facebook.com/martin.pilon.391 Martin Pilon

      Religion doesn’t own that word. Just like Civil Rights are not owned by African American. At one point in time, religions were perfectly okay with blessing unions where ther bride had litteraly been given to a man for power, land and wealth. At time, brides openly wept. Believe in God if you want, but leave the rest of us alone.

      • Rich Zawadzki

        Marriage Equality = Marriage Redefinion which = Everybody’s definition eventually (IE: Homosexuals, polygamists, polyamorists, incestuous (particularly same-sex) siblings)
        After all, “Love Is Love”, isn’t it?

        • pdview

          This is a false argument. Personally, I don’t care about the word but have come to embrace it because folks like Rich Zawadzki fail to stand up for my fundamental rights. The emotional and financial pain people like him cause people like me is devastating. You don’t want marriage redefined, then actively support total civil / legal equality for gay people who chose to make lifelong commitments with their partners, including immigration equality.

          Mary Gallagher, co-founder of the National Organization for Marriage, couldn’t just say “no.” She had a child out of wedlock and worries that he is missing something important. Somehow she makes the leap that gay marriage undermines the institution (marriage) that she failed to honor.

          Focus instead, please, on supporting the success of traditional marriage — it is a truly wonderful thing when it works. I am a product of one of those marriages. My parents and five siblings love me and my partner. They are as worried as I am that we may not be able to remain here in the US because our union is not recognized. It will be a huge loss if my partner and I are not able to participate in future family gatherings because we don’t have the same legal rights straight people do.

          Listen to this. Gay people are family.

          I could go on and on. Procreation happens, marriage or not. It is not under threat. Successful loving relationships take a lot of work and children do not need the ideal mother / father relationship to thrive, they need attention, love and care.

          I am not a threat to you or your concept of marriage but you have a lot of work to do to justify the pain you cause others.

        • ldfrmc

          People marry for reasons other than love, Rich. Straight people and gay people marry for all sorts of reasons.

          You want to marry your sister, or a dozen men, a dozen women? YOU have to go to court and change the definition, get “everybody” to agree with what YOU want.

          • ken

            Who gave you the right to rename heterosexuals “straight”?
            As a 40year urologist, I can attest to the fact that most men are dorsally bent.

    • ldfrmc

      Words are created and evolve over time. People, society does that. Words and their meanings are recorded in dictionaries. When popular use of a word changes, that new definition is reflected in dictionaries. Words also come into use, some are no longer used and some no longer mean what they originally meant.

      “Lewd” used to mean “not in the clergy.” Later, it meant “uneducated.” Now it means
      “indecent.” People make the changes by using language, not religious institutions.

      And, religious institutions have never owned or controlled “traditional words.” Just look at the history and meanings of the word “god,” or “quarantine.”

      • ken

        You are right. What people have chosen to change the meaning of Marriage to mean a union between two or more people. How come I was never asked. Why not just call it something else like Garriage. Both are civil unions between two people. If the Court can find a civil right that homosexual marrieds in California do not have, then declare that law unconstitutional. Otherwise, they should leave the California constitution alone.

  • http://www.facebook.com/people/Kevin-Smith/100003342846864 Kevin Smith

    The #1 one reason that deniers of same sex marriage give is suitability to raise children for denying same sex marriage, The problem with that line of reasoning is that it is false. No one is denied a opposite sex marriage no matter how inappropriate they are too raise children. Any serial killer or mental case can get an opposite sex marriage, even if raising children is totally out of their capability. So why should same sex couples be held to a standard, that opposite sex couples NEVER ARE?

  • David Sweeney

    IF the court rules that as a Federal law, they have to defer to the Legislative branch, and as a Federal law DOMA trumps state law, they well could, as they’ve done with state marijuana laws, invalidate all state same-sex marriage and civil union laws.

    Remember “Citizens United”? That came to court to determine when campaign ads could be run on pay TV.

    The Supreme Court is a dangerous place today. It should have been avoided at all cost.