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Analysis: Prop. 8 Case Unlikely to Result in Broad Right to Same-Sex Marriage

| June 14, 2013
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Nearly five years after voters passed Proposition 8, the U.S. Supreme Court will soon decide the fate of California’s ban on same-sex marriage. But will that be the final word?

Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. (Tim Sloan/AFP/Getty Images)

Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. (Tim Sloan/AFP/Getty Images)

When two same-sex couples filed a lawsuit challenging the constitutionality of Prop. 8, their attorney, Theodore Olson, described the issue in sweeping terms.

“The case we filed is not about liberal or conservative, Democrat or Republican,” Olson said. “This case is about the equal rights guaranteed to every American under the United States Constitution.”

In the summer of 2010, federal judge Vaughn Walker agreed, issuing a landmark decision declaring Prop. 8 unconstitutional — saying there was no rational basis for denying same-sex couples a license to marry.

The 9th U.S. Circuit Court of Appeals upheld Walker’s ruling in February 2012 but narrowed it considerably, saying it applied only to California, not the entire country. In the next two weeks, the U.S. Supreme Court will weigh in.

UC Davis law professor Vikram Amar calls a broad decision declaring a fundamental, nationwide right to same-sex marriage highly unlikely.

“It’s very rare for the court to invalidate the laws of two-thirds or three-quarters of the states,” Amar said, noting 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.

Since Prop. 8 passed, 11 states and the District of Columbia have legalized same-sex marriage. And John Eastman, an attorney for the National Organization for Marriage — supporters of Prop. 8 — hopes that discourages the high court from intervening.

“It’s very rare for the court to invalidate the laws of two-thirds or three-quarters of the states,” Vik Amar

“Americans across the country are grappling with an intense policy debate,” Eastman said. “And there’s nothing specifically in the Constitution that decides that debate one way or the other. And the Supreme Court ought to recognize that and let it play out.”

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.

In other words, how broadly does Judge Walker’s decision apply? Not broadly at all, said Prop. 8 attorney Andy Pugno.

“If we didn’t have standing, then there was no one to defend Proposition 8,” Pugno argued. “And in a case like that you can’t declare a statute unconsitutional. The best you can do is grant the relief that was asked for, and that’s for the two couples.”

But opponents of Prop. 8 argue that Gov. Jerry Brown would likely instruct county clerks to issue marriage licenses to same-sex couples. In that case, same-sex weddings would begin again by the end of July.

Even if the measure is upheld by the Supreme Court, the question is sure to be back on the ballot next year. Polls show well over 50 percent of California voters are now supporting same-sex marriage.

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Category: Law

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  • Curious

    If marriage “equality” is the issue, and based on arguments advanced by supporters of SSM, there can be no basis to limit marriage to only two people, and there is no basis to exclude those related by consanguinity from marriage.

    • beartrash

      Thanks for not bringing up the usual straw man argument of inter-species marriage as an inevitable conclusion of extending equal rights to my minority.

      But yeah go ahead and marry a relative. That’s actually legal in most states, unless it’s a sibling but most importantly, it’s no one’s business but your own and the blood relative you’re sleeping with.

      I think you’re out of luck if you want to marry more than one person, but no one is allowed to do that so we’re all equal with regards to that.

      • Curious

        “I think you’re out of luck if you want to marry more than one person, but no one is allowed to do that so we’re all equal with regards to that.”

        And no one was allowed to marry another person of the same sex, so we’re all equal.

        • ldfrmc

          Marrying more than one was in several cases, heard and decided.

          Marry someone of the same-sex is the current case – heard and not yet decided.

          Your (lack of) legal logic and knowledge is apparent.

          • Curious

            So, please tell me why polygamy should not be allowed? Or marriage between siblings? Contribute something besides base insults.

          • alydhe

            Two siblings producing a child can result in all the problems inbreeding usually causes. That’s why it’s so taboo.

            As for polygamy, personally I think you want to marry more than one person, that’s none of my business. But the point is, regardless of who you marry AFTER that first person, you were able to get married in the first place. I can’t and for no logical reason.

          • Curious

            “Two siblings producing a child can result in all the problems inbreeding usually causes. That’s why it’s so taboo.”

            Wrong on so many levels:

            1.) Proponents of SSM argue that marriage has nothing to do with procreation, which they must, since they are unable to procreate.

            2.) Siblings do not have to be married to have children.

            3.) If procreation between siblings is undesirable, make that illegal, not marriage.

            4.) Your argument smacks of eugenics. Should all babies be tested prior to birth be tested and those with “problems” be aborted? What is a “problem” and who makes that decision?

            “you were able to get married in the first place. I can’t and for no logical reason.” Again, false on its face.

            Want to try again?

          • K.Nakamura

            Um, yeah… Hate to burst your bubble. i’ll go over all of your points and try to be as clear as i can with why you are wrong, since you are so desperate to know why.

            1. False. same-sex couples, to a certain extent, CAN procreate. Ever heard of artifical insemination? that can work for both a gay couple and a lesbian couple, albeit in different ways. Still, your “can’t procreate” arguement is invalid.

            2. Well, you do have a point here. I’ll give you that.

            3. Yes, that is a possibility. I am not strongly against “incest”. Personally I’m definitely not into it, but hey if you are, go for it. Try to get people to vote for it, or sign a petition or something. same goes for polygamy.

            4. the “problems” are various mental problems(especially retardation) and physical abnormalities. That is not to say this is the ONLY way for a child to be retarded/deformed(as you no doubt would question that if i din’t mention it), but it has been proven. As for forcing abortion: Of course not. There is no such thing as a forced abortion in our country. At least, not anymore.

            “”you were able to get married in the first place. I can’t and for no logical reason.” Again, false on its face.”

            Actually it is true. the point was that while polygamy is illegal, you can get married to one person. A gay person cannot, unless you mean they can marry someone of the opposite sex. So, maybe you are right by technicality. I’ll rephrase it. A homosexual(or bisexual, pansexual, etc) individual CANNOT marry who they want to marry, but YOU can. It is state-legal in some states, but it is not federally recognized which means we are still denied the right to the privilege of marriage as well as its benefits. I’m not into polygamy or incest, but if you have a reasonable petition to legalize it, I would sign it. You are clearly not into same-sex marriage, why not do the same? You can think it is gross and icky and “sinful” if you like(I know you never said those things, just an example), but denying other people a right that you have just because they are different is 100% unconstitutional. This is legal discrimination and it has to stop. I still do not see why people would fight so hard for the sake of INequality. The nation prides itself on Equality. I have never seen it, and we need to change that. “Liberty and justice for all”. Sound familiar? So, where is my liberty to marry another woman legally? Oh, it is in the state I currently reside in, and a handful of others. Ok, so where is my liberty to have the same marriage benefits? Oh, it doesn’t exist? “Liberty and justice for some.”

    • Dan_D

      Again, Homosexuality is NOT ILLEGAL. Therefore, homosexuals should not be barred from the same rights of marriage that any other straight US Citizen has. Polygamy and Incest ARE ILLEGAL. And before you go down that silly, “Oh Gays have the right to marry… as long as they marry someone of the opposite sex.”… That, my dear, is the same logic as saying, “Sure, blacks can ride the bus… as long as they stay in the back, were we can’t see them.” And that sort of thinking HAS BEEN RULED UNCONSTITUTIONAL by SCOTUS… in SEVERAL cases.

      • Curious

        Dan_D: Why should a person not be allowed to marry more than one person? Why should siblings not be allowed to marry? That is the question.

    • ldfrmc

      No where in the arguments advanced by supporters of same-sex marriage is there a basis for polygamy or incest. Where in the March hearing did a Justice ask your questions?

      You are pretty simple-minded.

      • Curious

        You are coarse and ill-bred.

  • Petey

    It’s legal in more states to marry your first-cousin then it is to marry your same-sex partner. A travesty. The issue here is that people are BORN with their sexual orientation and marriage has changed over the decades to fit people’s views. Polygamy has been around longer than traditional, one-man, one-woman marriage as we know it. Utah made polygamy illegal so it could become apart of the united states. There is no justification for NOT allowing same-sex couples to get married just like heterosexual couples, especially after the SCOTUS decision in the 60s Loving v. Virginia interracial marriage case that stated that “marriage is a fundamental right.”

    • Petey

      Furthermore, if someone wants to have multiple spouses that is none of my concern. Nor do I care if they marry their brothers or sisters. It is not my business, no matter how odd I think the way they lead their life…nor should it be any concern to the government as long as they pay their taxes and are productive citizens of this nation. Now, two same-sex couples have nothing in common with polygamy or wanting to marry your sibling. Please be advised, these are separate issues and have about as much to do with each other as the arguments were used many decades ago that if we allow black to marry whites the very institution of marriage would crumble because of it.

      • Curious

        ” Now, two same-sex couples have nothing in common with polygamy or wanting to marry your sibling.”

        I disagree, but would like to hear your reasoning.

        • Dan_D

          @ Curious… of course you would disagree. Because you are against Same-Sex marriage… and are looking for any inane, illogical reason to keep it illegal. Well, here’s your reasoning… Homosexuality is NOT ILLEGAL. Therefore, homosexuals should not be barred from the same rights of marriage that any other straight US Citizen has. Polygamy and Incest ARE ILLEGAL. And before you go down that silly, “Oh Gays have the right to marry… as long as they marry someone of the opposite sex.”… That, my dear, is the same logic as saying, “Sure, blacks can ride the bus… as long as they stay in the back, were we can’t see them.” And that sort of thinking HAS BEEN RULED UNCONSTITUTIONAL by SCOTUS… in SEVERAL cases.

          • Curious

            Ever heard of circular reasoning?

          • ldfrmc

            Ever heard of stating why you said you disagree?

          • Curious

            I am asking why something is not legal and he says because it is not legal. Do you have anything useful to contribute?

    • Curious

      The court said that marriage between a man and a woman is a fundamental right.
      SSM and inter-racial marriage have nothing in common.

      • Marco Luxe

        Why did you add in “between and man and a woman” to what the court ruled? The court has said numerous times that marriage is a fundamental right. Gay couples are married in 12 states, and equivalently-married [yeeach!] in a few others.

        • Curious

          Because that is what the court ruled.

          • Petey

            The Loving v. Virginia ruling simply said marriage is a fundamental right and to bar a couple from marrying simply because they were of different races was unconstitutional. If it is unconstitutional to keep interracial couples from getting married because of the their RACE why wouldn’t it be unconstitutional to deny same-sex couples the right to marry because of their SEX?

          • Curious

            Because race and sex are entirely different things. A white man is the same as a black man. Not rocket science.

          • Robert

            Exactly! Thank you curious for having the nerve to point out the truth when so many are hiding from it. People that are black have been born that way. As a psych major, I find it troubling that people refer to ONE study whose findings were actually debunked as a reason to believe that homosexuals are, “born that way.”

          • alydhe

            And yet I recall having crushes on other girls in headstart and kindergarten. I was born and raised in hetero normative Kentucky with a very homophobic family. I have never once been sexually or emotionally attracted to a man but I always have with women. What other reason than I was born this way would explain that?

    • Robert

      This is another travesty of the current American judicial system. Marriage is not a right at all. It is a privilege. For those that believe it is a right answer me one question… why must we get marriage ‘licenses’ if it is our right. For the same reason we have to get drivers’ licenses, it is a privilege.

  • Marco Luxe

    Prof. Eastman diminishes the value of a degree from Chapman University, where he teaches, whenever he makes such inane claims like “there’s nothing specifically in the Constitution that decides that debate one way or the other.” The Equal Protection Clause of the 14th Amendment demands that the government must treat like people alike. Gay couples raising children, from the government’s point of view, are the same as straight couples raising children, and the government must treat them alike.

    • Curious

      SCOTUS has already ruled that a state law which restricts marriage to the union of one man and one woman does not implicate the Equal Protection Clause and, in fact, presents no federal question at all.

      I assume you also know that Supreme Court Justice Elena Kagan has said that”There is no federal constitutional right to same-sex marriage.”

      • Dan_D

        @ Curious… exactly when did SCOTUS rule such a thing?

        • Curious

          Baker v. Nelson.

          • Petey

            Which happened in the early 70s, before the courts had made any kind of major precedent ruling in favor of same-sex couples right to marry.

          • ldfrmc

            1972. They returned to case to the state of Minnesota for “lack of a federal” issue.

            Since then, same-sex couple have legally married.

            Having a “right” (no long lacking a legal “question”) has yet to be decided by the Supreme Court.

            You are way-out-of-date and know little to nothing about law.

          • Curious

            It is a decision on the merits and is precedent.

    • Robert

      That is the most ridiculous statement I have ever heard. This is why our country is in the place it is. People interpret the Amendments as it fits their belief system. The Equal Protection Clause, according to its terms; was not supposed to be used to silence the majority. Instead, it was created to keep the majority from disallowing the minority a voice.

  • Dan_D

    Of Course Supporters of Prop 8 want it to “play out”. It gives them more time to legally discriminate. Just like Supporters of Slavery, Segregation, and those against Women’s Rights wanted it to “play out”. At some point, the Supreme Court really needs to Man-Up on Citizen’s Civil Rights. They have a very poor track record of “letting it play out”.

  • DERP

    I love the fact that the bigots and religious nuts are really the
    only people that oppose it, but it’s scary how many of them there are.
    Also, scroll down and look for the haters… SHOCKING that the literacy
    level drops the more hatred there is. I guess the only real way to get
    married is to drop out of school in 5th grade and knock up your sister.