Most Americans have heard of “Prop 8”, the California ballot initiative which amended California’s State Constitution to define marriage as a union of one man and one woman.   Here is a very brief history of how Prop 8 came about and what has happened to it since it was passed.

  • In May, 2008, the California Supreme Court ruled that same-sex couples had a right to marry in California.
  • In response to that decision, opponents of gay marriage got Prop 8 on the ballot, and the California voters passed it 52-48% in November, 2008.
  • When Prop 8 was challenged in the California State Courts, it was upheld.
  • When Prop 8 was then challenged in Federal District Court, it was found to violate the U.S. Constitution.
  • The U.S. Ninth Circuit Court of Appeals affirmed the Federal District Court’s ruling.
  • On Tuesday, March 26, the United States Supreme Court will hear oral argument in “the Prop 8” case,  Hollingsworth v. Perry, as part of its review of the Court of Appeals’ ruling.

For a more detailed history of the case, click on this link: http://blogs.kqed.org/newsfix/2013/03/22/proposition-8-how-we-got-here/

A ruling in this case is not expected until June — as late as June 30 — and there are any number of possible outcomes.  Gay marriage proponents hope for a sweeping ruling declaring that all same-sex marriage bans violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  Such a ruling would have the effect of legalizing gay marriage not only in California but nationwide.  It would effectively be a declaration that Arizona’s Proposition 102 and other states’ laws and constitutions outlawing gay marriage are also unconstitutional–that they too violate the Equal Protection Clause of the Fourteenth Amendment.

The opposite result is also possible.  The Supreme Court could hold that Prop 8 does not violate the Equal Protection Clause.  Such a ruling would validate Arizona’s Prop 102 and other similar state laws and constitutional amendments.  A ruling that Prop 8 is constitutional would NOT, however, make same-sex marriage illegal nationwide.  It would simply mean that it is up to each state to decide whether to define marriage as a union of one man and one woman or to use a broader definition that allows same-sex marriage.

While it is possible that the Supreme Court will make a broad ruling declaring that a state’s defining marriage as between a man and a woman does or does not violate the Equal Protection Clause, I believe it is not likely.  The Supreme Court tends to make very narrow rulings.  It decides the issue before it while leaving alone issues which could be decided another day.  If the Supreme Court is inclined to uphold the lower Federal Court’s decision invalidating Prop 8, it will likely affirm the  ruling striking down Prop. 8  in a way that does not make gay marriage legal nationwide.  It may even allow the Federal District Court’s ruling to stand on a purely procedural ground–that the petitioners in the case do not have legal standing to bring the appeal.

It is my opinion that the Court will affirm the lower court’s decision striking down Prop. 8 and that it will do so not solely based on a procedural technicality, such as a finding that the petitioners lack standing.  If the Supreme Court wanted that outcome, it could have simply refused to review the case.  The fact that the Supreme Court accepted review of the case means that it has something to say about the subject.  I believe the outcome will be to let the lower court’s decision striking down Prop. 8 stand without invalidating other states’ bans on gay marriage, such as Arizona’s Prop 102.

There is plenty of information about this case available online to the public.  Here is the link to the Supreme Court’s docket of this case: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-144.htm.  A slew of briefs have been filed with the Court in this case, some by the parties but most by numerous  special interests groups who have filed amicus curiae (latin for “friend of the court”) briefs.  To read the briefs, click on this link: http://www.americanbar.org/publications/preview_home/12-144.html

Same-sex marriage is the most significant social issue to come before the Court this century, and maybe the most significant in the last 50 years.  Whatever side of this issue you may be on, most of us will agree the legal issues are fascinating, and I will be excited to see how the Court rules this June.  While the ruling on the Prop 8 case may not end the debate entirely, I believe the trend in our country toward an expansion of the right to marry will continue.

Copyright © 2013 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.