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Court to tackle California’s ban on same-sex marriage: In Plain English

At ten o’clock tomorrow morning, the Justices will hear one hour of oral arguments on the constitutionality of California’s Proposition 8, which amended that state’s constitution to prohibit same-sex marriages.  The Court will then return on Wednesday morning to hear nearly two hours of arguments on the federal Defense of Marriage Act (DOMA), which defines marriage for federal laws and programs – including things like income taxes, estate taxes, and Social Security survivors’ benefits – as a union between a man and a woman only.

Under any circumstances, the same-sex marriage cases would shine a spotlight squarely on the Court, but that spotlight will be even brighter given the recent coverage of the dramatic growth in public support for same-sex marriage, reflected not only in recent polls but also in statements by Republican Senator Rob Portman – who was on Mitt Romney’s short list for potential vice-presidential candidates – and former President Bill Clinton, who signed DOMA into law in 1996.  Let’s start with the Proposition 8 case – which currently goes by the name of Hollingsworth v. Perry – and talk about the issues in the case in Plain English.

Perry is the same-sex marriage case that has received the most attention in the years leading up to the Supreme Court proceedings this spring.  This is at least in part because it was filed in 2009 by a legal odd couple:  renowned trial lawyer David Boies and former Solicitor General Ted Olson, who are both perhaps best known for being on opposing sides in Bush v. Gore.  Boies and Olson filed the case four years ago with the intention of ultimately asserting in the U.S. Supreme Court that gays and lesbians have the same right to get married as everyone else, but that goal led to concern from supporters of same-sex marriage that they were moving too fast:  the country and the Court just aren’t ready for same-sex marriage yet, the thinking went, and a loss at the Supreme Court could set the cause back for years if not decades.  But as the case has moved along, public opinion has shifted dramatically with it.

The history of Proposition 8 actually starts with California’s Proposition 22, an initiative approved by the state’s voters in 2000 that amended the California Family Code to provide that “only marriage between a man and a woman is recognized in California.”  In 2008, the California Supreme Court ruled that Proposition 22 violated the state constitution.  The court ordered the state to start issuing marriage licenses to same-sex couples who wanted them.

Nearly 18,000 same-sex couples were married in California, but same-sex marriages came to a halt in November 2008, when the state’s voters passed Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to get married.

The plaintiffs in the Hollingsworth case – two same-sex couples who want to get married – filed their lawsuit a few months later in a federal district court in San Francisco.  The usual defendants in such a case – the California governor, the attorney general, and other state and local officials who would implement and enforce Proposition 8 – declined to defend the initiative as constitutional, so the individuals and organizations that had sponsored Proposition 8 stepped into the case as defendants to do so.

The challenge to Proposition 8 was assigned to federal Judge Vaughn Walker, who held a lengthy trial with dozens of witnesses and received thousands of pages of evidence.  In 2010, Judge Walker ruled that Proposition 8 was unconstitutional, holding that California had not offered a good reason to infringe on what he concluded was a fundamental right of same-sex couples to marry.

The proponents of Proposition 8 appealed Judge Walker’s decision to the U.S. Court of Appeals for the Ninth Circuit.   Before that court reviewed the merits of the challenge, however, it asked the California Supreme Court to weigh in on an issue that is very technical but which also goes to the heart of the court’s authority to hear the appeal:  whether California law permits the proponents of an initiative to step into a case to defend the initiative’s validity.  After several months, the California Supreme Court ruled that they do, and so the case resumed in the Ninth Circuit.

Turning to the constitutionality of Proposition 8, the court of appeals held the initiative unconstitutional, but on narrower grounds than Judge Walker.  It declined to decide whether there is a constitutional right to same-sex marriage.  It didn’t have to do that to decide the case, it explained, because Proposition 8 is unconstitutional for another reason.  In 1996, in a case called Romer v. Evans, the Supreme Court held that an amendment to the Colorado constitution which prohibited gays and lesbians from seeking or receiving protection from discrimination violated the federal Constitution.  That logic, the Ninth Circuit explained, applied equally to Proposition 8, because it took away the right of gays and lesbians to marry simply because people didn’t like them.

Having lost in the lower courts, the proponents of Proposition 8 filed a petition seeking U.S. Supreme Court review last summer.  And although the Ninth Circuit had decided the case on a narrow theory, the proponents asked the Court to weigh in on a much broader question, the answer to which would have great consequences for the more than forty other states that prohibit same-sex marriage:  Whether the Constitution prohibits a state from defining marriage as the union of a man and a woman.

The Court granted review on December 7, 2012.  In doing so, it ordered both sides to address an additional question:  whether the proponents of Proposition 8 have “standing” – a legal right to appear in court to defend the initiative – as a matter of federal (as opposed to state) law. 

The proponents of Proposition 8 filed their opening brief on the merits of their case in late January.  They pushed back against the court of appeals’ ruling that Proposition 8 unconstitutionally revokes a right to same-sex marriage that the state had previously granted.  It is certainly not the case, they contend, that by choosing to offer more rights to its residents than the Constitution requires, a state automatically commits itself to do so forever.

The proponents also emphasize that Proposition 8 simply “restore[d] the traditional definition of marriage” that has been in existence for centuries, and which rests in no small part on a desire to ensure that children “will be born and raised in stable and enduring family units by their own mothers and fathers.”  This concern does not apply to same-sex couples, who cannot produce children, but in California those couples can enter into “domestic partnerships,” which give them essentially all of the rights and responsibilities of marriage, just without the label.  Finally, noting the victories for supporters of same-sex marriage in the elections held just a few months ago, the proponents urged the Court to leave the “public debate” about same-sex marriage to the democratic process.

Turning to the question whether they have a legal right under federal law to be in the Supreme Court to defend Proposition 8 at all, the proponents’ answer is an unqualified yes.  In their view, state law determines who can assert the state’s interests in defending its laws.  Because the California Supreme Court said that they have the authority under state law to defend Proposition 8, that is all that matters.

Olson and Boies filed their brief on behalf of the challengers of Proposition 8 in late February.  Preliminarily, they argue that the proponents of Proposition 8 do not have “standing” because they would not personally be injured if same-sex marriages were allowed in California.

However, the challengers spend less than four pages on this issue before moving on to their main argument:  marriage is a fundamental right that has nothing to do with having children.  Notably, the challengers do not defend the court of appeals’ narrow ruling that California alone violated the Constitution by recognizing a right to same-sex marriage then taking that right away.  Rather, they argue that there is a basic right in every state for same-sex couples to marry.  Because marriage is such a fundamental right, and gays and lesbians have traditionally been victims of discrimination, the challengers continue, the Court should apply a more demanding test – known as “heightened scrutiny” – to determine whether Proposition 8 is constitutional.

The challengers dispute the notion that same-sex couples shouldn’t be allowed to marry because they can’t have children.  That theory would, they say, also extend to opposite-sex couples who either can’t or don’t want to have children of their own.  (As Mark Sherman of the Associated Press has pointed out, this is an argument that could resonate with some of the current Justices:  neither Justice Thomas and his wife nor the Chief Justice and his wife have biological children together, while Justice Sotomayor – who is now divorced – has said that when she married she did not intend to have children because of her diabetes.)

Although the federal government is not directly involved in the Proposition 8 case, it filed a “friend of the court” brief in the Supreme Court in which it too urges the Court to strike down Proposition 8, but to do so using a rationale that would not require the Justices to decide whether – as the challengers have argued – there is a broad right to same-sex marriage.  When a state like California (or the seven other states with similar laws permitting same-sex civil unions but prohibiting same-sex marriages) allows same-sex couples to have all of the rights and responsibilities of marriage through domestic partnerships or civil unions, but won’t allow those couples to actually be “married,” the government reasons, that different treatment based on sexual orientation violates the Constitution’s guarantee that laws will treat everyone equally.

At tomorrow’s oral argument, the Justices will hear from the lawyers representing the proponents and challengers of Proposition 8 and from the Solicitor General of the United States.  All eyes will be on Justice Anthony Kennedy, who is generally regarded as the critical vote on the Court, especially because he was also the author of Romer v. Evans and Lawrence v. Texas, another recent decision involving the rights of gays and lesbians.  We’ll be back tomorrow afternoon to break down that argument in Plain English.

[Disclosure:  A lawyer in the law firm of Goldstein & Russell, P.C., in which I am a partner, filed a friend-of-the-court brief in support of the challengers to Proposition 8.  However, I did not participate in that brief.]

Recommended Citation: Amy Howe, Court to tackle California’s ban on same-sex marriage: In Plain English, SCOTUSblog (Mar. 25, 2013, 11:00 AM),