On September 24, 2012, nine of the brightest legal minds in the country will sit at a round table, and decide which cases they will review on appeal to the Supreme Court of the United States. Among these will be the case against California’s Proposition 8, which was an amendment to ban gay marriage in the state. But first, a brief lesson in recent history to refresh your memory regarding Prop 8.
Prop 8: The History
Prior to Prop 8, the highest state court of California had ruled that same-sex couples had a constitutional right to marry. The Supreme Court of California ruled in In re Marriage Cases that a statutory ban on same-sex marriage was a violation of the state constitutional rights of same-sex couples. As a result, same-sex marriage became legal in California on June 16, 2008 and created over 18,000 legally married same-sex couples.
However, during California’s state election in November of 2008, the voters of the Golden State passed by a ballot an amendment to the State’s constitution dictating that “only marriage between a man and a woman is valid or recognized in California.” This amendment is commonly known as Proposition 8, which overturned the ruling in In re Marriage Cases.
Upon enactment of Prop 8, many same-sex couples launched lawsuits against the State of California, alleging that Prop 8 violated their constitutional right to marriage. The U.S. Federal District Court decided to overturn Prop 8, agreeing that the amendment was violated the Equal Protection and Due Process of the Fourteenth Amendment in the US Constitution. But the court also said that California’s ban on same-sex marriage would remain in effect pending further appeals to the higher courts. The proponents of Prop 8 appealed to the Ninth Circuit Court of Appeals – the next level in the federal court system – seeking to reinstate the amendment. Like the District Court, the Ninth Circuit also ruled that Prop 8 was unconstitutional. However, as Prop 8 supporters could still petition for appeal to the Supreme Court of the United States, the Ninth Circuit never lifted the ban on same-sex marriage in California.
This brings us to the present. On September 24, 2012, the Supreme Court Justices will gather to determine whether to grant the Prop 8 appeal or reject it. If the judges decide to reject the petition for appeal, then Prop 8 is effectively overturned and the ban on same-sex marriage in California will be lifted. If the judges decide to hear the appeal, then the supporters of Prop 8 will have their last chance to keep the ban on same-sex marriage in California.
The Current State of Marriage
Because of the pending and potential Supreme Court review, the ban on same-sex marriage in California still stands even though courts have ruled that the ban is unconstitutional. However, there are several interesting points of note regarding Prop 8’s operation:
- Prop 8 had no impact on same-sex marriage performed on June 16, 2008 and before November 5, 2008, as the court held that same-sex marriage was valid during this brief time frame. This means if your marriage occurred during this time in California, the state will recognize it as a legally valid marriage.
- Prop 8 had no impact on registered domestic partnerships in California. For all registered domestic partnerships, regardless of the date of registration, it is business as usual.
- Prop 8 banned same-sex marriage on November 5, 2008. As of that date, same-sex couples cannot legally get married.
Will Supreme Court Hear Prop 8?
With the Supreme Court geared up to evaluate the merit of the petition for appeal, legal scholars and journalists everywhere are debating whether the Supreme Court will choose to review Prop 8 and if so, what will they decide. There are three criteria that the Supreme Court weigh when deciding whether or not to hear a case (they generally hear <2 % of cases brought to them).
- There is a lot of conflict in the lower courts.
- A ruling by the Supreme Court would have broad national impact
- The case has been fully litigated in the lower courts.
Given the narrowness of the ruling by Judge Walker and the decision by the 9th Circuit court, it seems unlikely that a ruling on Prop 8 will have a national impact. There are also a number of DOMA cases that could be reviewed by the Supreme Court that would have much broader impact. Justice Ginsberg was quoted this week saying that she expected DOMA to come before the court in the upcoming session.
Will the 4 liberal judges choose to take a win in California (denying the cert) rather than risk it being overturned? Will the 4 conservative justices choose to hear the case if they know the 4 liberal judges will affirm the lower courts rulings, thus leaving things in the hands of Justice Kennedy? The Walker and 9th circuit ruling were written in a way that suggest they were speaking directly to Justice Kennedy (quoting his past rulings), suggesting he may be likely to side with the liberals. This seems to suggest that the court will likely not take the case, preferring to opine on the DOMA challenges instead.