March 30, 2013

Legal Analysis: The Supreme Court and the Proposition 8 Gay Marriage Ban

The US Supreme Court Building and the inscription equal justice under the law.

A Brief History Of Gay Marriage In The Golden State And Beyond

By Roy Steele

This was a historic week in the burgeoning marriage equality movement that’s been steadily gaining support across the United States. I know that we can’t predict the future, so it’s impossible to speculate where marriage equality will stand in six months - but we can make an educated guess.

The political landscape ten years ago was markedly different and pretty bleak. There were very few politicians embracing gay civil rights, and Republican legislators in the House and Senate introduced a Federal Marriage Amendment (FMA) to amend the Constitution. The proposed FMA would limit marriage to a union of one man and one woman, and expressly stated that no court could extend marriage rights to any couple under any circumstances.

Today the political climate and the court of public opinion is clearly on our side.

On Tuesday and Wednesday, the US Supreme Court heard oral arguments in two separate appellate actions related to same-sex marriage.

While I think it’s unlikely that the court will find the discriminatory Proposition 8 and the Defense of Marriage Act (DOMA) are constitutional measures, it’s likely that the court’s opinion will be narrow, and that’s OK.

We would love a broad sweeping decision that legalizes gay marriage nationwide, but the oral arguments revealed that the court is reluctant to move in that direction. Regardless, it’s the love and commitment we have for each other that legitimizes our relationships, not these two court decisions.

On Tuesday the court’s focus was on Hollingsworth v. Perry, which is also known as California’s Proposition 8 case.

January 2004 - The San Francisco Experiment


In 2004 newly elected Mayor Gavin Newsom authorized the San Francisco County Clerk to issue marriage licenses to same-sex couples. In a 4 week period, over 4,000 gay couples descended on San Francisco from all 50 states to get married. The California Supreme Court ruled that Mayor Newsom lacked the authority to bypass state law, and voided and annulled the marriages.

Various parties filed suit in the California Supreme Court, challenging the state’s civil code and marriage regulations that limited marriage to opposite sex couples.

In late 2007 and early 2008, gay marriage opponents began gathering petition signatures for a statewide ballot initiative that would ban same-sex marriage in the California Constitution.

Gay marriage --- now you see it....


In May of 2008 the state Supreme Court issued their decision that marriage was a fundamental right that applied to all California citizens, regardless of their sexual orientation. The Court held that the state’s previous same-sex marriage bans were unconstitutional, and that any state law that prescribed anti-gay discrimination was constitutionally suspect. California became the 2nd state to extend marriage equality to same-sex couples.

There were thousands of same-sex couples that rushed to City Hall to obtain their marriage license, and get married as quickly as possible. Many other gay couples announced their engagements, consulted with wedding planners, and prepared to walk down the aisle to Wagner’s Lohengrin Wedding March.   

In June 2008 the California Secretary of State announced that the anti-gay same-sex marriage opponents had gathered the requisite number of signatures required to place the citizen’s initiative to ban gay marriage on the November 8th ballot. This proposed law would be known as Proposition 8.

The Mormon Church and the Roman Catholic Church formalized their plans to organize and finance the Proposition 8 campaign. These tax-exempt religions committed their considerable resources to overturn the state Supreme Court ruling, and take away the the newly granted marriage rights that same-sex couples had sought for years.

Gay marriage --- and now you don’t....


On election day November 8th, 2008, voters of every stripe were thrilled and excited that our nation elected Senator Barack Obama (D-IL) as the first African-American President of the United States. While most of the nation celebrated, many LGBT Californian’s were in a state of disbelief. A majority of California voters endorsed Proposition 8, which meant that at 12:01am on November 9th, same-sex marriage would be illegal.

Everyone knew that the battle over this contentious issue would return to the courts. Governor Arnold Schwarzenegger (R-CA) and Attorney General Jerry Brown (D-CA) believed that Proposition 8 was discriminatory, and they refused to defend the law.

The Legal Dream Team And The Appeal


In 2009, lawsuits were filed challenging the validity of the same-sex marriage ban, and the California Supreme Court ruled that Proposition 8 was a lawful amendment to the state constitution.

In 2010 the legal dream team of Theodore Olson and David Boies were retained by the American Foundation for Equal Rights to act as the lead attorneys challenging the validity of Proposition 8 in the ongoing appeals process.

After a lengthy trial in the U.S. District Court for the Northern District of California, Judge Vaughn Walker ruled that Proposition 8 is unconstitutional because it violates the Due Process and Equal Protection clauses in the US Constitution.

Proposition 8 supporters appealed the District Court decision to the Ninth Circuit Court of Appeals in 2011, and a 3 judge panel affirmed the District Court ruling 2-1. The Proposition 8 campaign then requested an en banc review in the Ninth Circuit Court of Appeals, which requires a case to be heard before all the judges that comprise the Court of Appeals. The request was rejected, and the Proposition 8 attorneys filed an appeal with the US Supreme Court, which they granted in 2012.

SCOTUS: The Oral Arguments And Legal Analysis


After listening to the oral arguments held on March 26th, 2013, and reading the transcript from the proceeding, it’s hard to speculate how the Supreme Court will rule in this complex case.  

Prior to the oral arguments, many legal analysts suggested that the Court would concur with the lower courts, and rule that Proposition 8 violates the equal protection clause of the US Constitution. This overly optimistic view also suggested that under this scenario, the Court would make a sweeping decision that invalidates similar same-sex marriage bans in other states.

I think it’s highly unlikely that the Court will make a sweeping decision that will affect any state other than California, because the Supreme Court cannot consider the merits of Proposition 8, until they decide that the campaign proponents of the law have legal standing to represent the interests of the state of California.

When the governor and attorney general refused to defend Prop. 8 - the entities behind the political campaign stepped in to promote and defend the law. Many of the Justices found this prescription to be problematic. If the Court rules that the Prop. 8 attorneys don’t have legal standing to represent the state of California, the case will be returned to the District Court, and the lower court’s ruling will stand.

If the Court finds that the Prop. 8 attorneys do have legal standing, they will have to review and evaluate the lower court’s ruling that Proposition 8 violates the Due Process and Equal Protection clauses in the US Constitution, and based on the line of questions during oral arguments, the Justices appear to be reluctant to do so.

I strongly believe that the Supreme Court will find a way to issue a narrow decision that invalidates Proposition 8, and only applies to California. Whether their ruling centers on the issue of legal standing, or they consider the legal merits of Proposition 8, I think they will conclude that the state of California’s same-sex marriage ban is discriminatory and unconstitutional.

The US Supreme Court will render their decision in late June.



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