Placing Bets On A Post-DOMA/Prop 8 World

25 Mar

lgbt worldLyle Denniston has another of his redoubtably informative backgrounders on the politics of SCOTUS’ hearings on the Defense of Marriage Act and California’s Proposition 8 on Tuesday.

For Tuesday’s hearing, under a one-hour schedule, the Court is not dividing the hearing between the issues of its authority to decide the case and the constitutionality of Proposition 8.  Charles J. Cooper, of the Washington, D.C., law firm of Cooper & Kirk, will appear first for the sponsors of the ballot measure, with thirty minutes of time.  He will be followed by the lawyer for the two same-sex couples who challenged that provision, Theodore B. Olson of the Washington office of Gibson, Dunn & Crutcher, with twenty minutes.  Finally, the Obama administration’s lawyer, Solicitor General Donald B. Verrilli, Jr., will have ten minutes to make the government’s case as an amicus.  The Chief Justice is likely to allow the hearing to go on beyond an hour.


More than twelve years ago, California voters went to the polls and approved Proposition 22.  That changed a state law dealing with family relationships to provide that “only marriage between a man and a woman is valid or recognized in California.”  In May 2008, the California Supreme Court ruled that Proposition 22 violated the state’s constitution, which guaranteed equal protection of the laws.  In response, more than 18,000 same-sex couples obtained licenses and were married.

In the November 2008 election, however, the state Supreme Court ruling was overturned at the ballot box by the state’s voters’ approval of Proposition 8.  It won by a margin of 52.5% to 47.5% — about 5.4 million “yes” votes to about 4.9 million “no” votes.  That changed the state constitution (not just a state law) to read exactly as Proposition 22 would have made state law to read: “Only marriage between a man and a woman is valid or recognized in California.”  The provision went into effect the day after the election, and same-sex marriages in the state stopped.

A challenge, based upon state law, to Proposition 8′s validity then began, leading to a ruling by the state supreme court in May 2009 upholding the measure, but refusing to strike down the marriages that had occurred in the meantime.   That decision was not based in any way on federal constitutional issues.  The marriages that had occurred in the interim were the last in the state since then, because Proposition 8 remains on the books pending the outcome of the case now before the Justices.

Shortly before the California court had ruled on Proposition 8, a lesbian couple, Kristin Perry and Sandra Stier of Berkeley, and a gay couple, Jeffrey Zarrillo and Paul Katami of Burbank, who had been denied marriage licenses because of Proposition 8 began a federal constitutional challenge to the ballot measure.   In August 2010, U.S. District Judge Vaughn R. Walker of San Francisco struck down the provision, finding it violated the Constitution’s guarantees of legal equality and due process.

Judge Walker concluded that there was no need to create a new and free-standing right of same-sex marriage, declaring that the existing institution of civil marriage had to be equally available, and could not be denied on the basis of sexual identity or orientation.

After that, the measure’s sponsors took the case on to the Ninth Circuit Court, leading to a divided decision in February last year striking down Proposition 8.  The Circuit Court said it was not ruling on whether same-sex couples had to be given equal marriage rights, since the California situation was one in which those couples had once been allowed to marry, and then that was taken away — partly out of disapproval of homosexuality.  That ruling, considerably narrower than Judge Walker’s decision, was based upon a 1996 Supreme Court decision (Romer v. Evans) striking down a Colorado state constitutional amendment taking away from gays and lesbians any chance to obtain state or local laws to protect them from discrimination based on their sexual orientation.

The Circuit Court, however, put its decision on hold for the duration of appeals.  Marriages could resume if the Supreme Court were to strike down Proposition 8, but not if the Court upheld the measure.   If the Justices were to rule that the backers had no right to appeal, lower federal courts will then have to sort out what follows, including whether both the Circuit Court’s decision and Judge Walker’s ruling would be nullified.

Situations could arise where SCOTUS creates a very complicated legal environment. It’s not just a thumbs up or down proposition. And, any decision short of unanimity will give opponents and proponents ammunition for future legal challenges. The future might not be bright.

Hoping for the Defense of Marriage Act to be overturned; dreading what the conservative backlash and the actual implementation of the new right to marriage throughout the country. That’s the range of the mixed feelings LGBT activists face.

There’s an aspect of this I resent. Marriage is such a conservative institution, that in a sense it is beneath the dignity of LGBT persons to limit them to this manner of constitutional abstruseness. LGBT rights challenge the status quo, broadly of how men and women interact across all relationships. There’s a lot of light in that reality. It’s hopeful to think that any person with any given profile in any given situation can live her live productively and sociably, and the community as a whole will be better for it. It’s really hard to imagine what that world would look like concretely right now. Between now and that future is a lot more controversy and pain.

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