I Do ... I Think? Making Sense of Gay Marriage in the Golden State

For the better part of the past decade, California has been engaged in an epic battle over, well, getting engaged. The multiple court cases, votes, legal victories, reversals, protests, celebration and more protests have kept same-sex couples in an ongoing state of marital limbo and made it downright confusing to keep track of where things stand.

The latest

On December 7, after months of anticipation, the U.S. Supreme Court announced that it would tackle the issue of same-sex marriage by examining two different cases. The first case involves deciding on the constitutionality of the Defense of Marriage Act (DOMA), and will examine whether the government can deny federal benefits to legally married same-sex couples.

In a more surprising move, the court also decided to review a lower court's decision in February that ruled California's Proposition 8 unconstitutional on the grounds that it violates the U.S. Constitution's Equal Protection Clause. Following that earlier ruling, opponents of gay marriage appealed to the Supreme Court, who will now likely hear arguments next spring. Its decision on the issue could have national ramifications in determining whether or not gay couples have a constitutional right to marry.

How we got here

It’s been a long, strange trip to say the least.  For the sake of brevity, let’s start in 2008 (although the battle got heated years before that – just scroll through this interactive timeline for all the gritty details). In June of that year, counties began issuing marriage licenses to same-sex couples. This started a month after the California state Supreme Court  (not federal) overturned the existing ban, The court ruled that marriage was a fundamental right that could not be denied based on sexual orientation. And over the next six months, thousands of same-sex couples in California got married.

A short-lived celebration

But the honeymoon was cut short during the 2008 presidential election that November, when just over half of California voters approved a ballot measure known as Proposition 8 (which supporters labeled the "California Marriage Protection Act"). The measure trumped the court’s earlier decision and amended the state's Constitution by adding the provision that "only marriage between a man and a woman is valid or recognized in California." Interestingly, the same court also later rejected efforts by gay marriage advocates to strike down the ban.

Bringing it to the feds

Less than two years after Proposition 8 passed and was upheld by the California Supreme Court, the tables shifted yet again. The case was brought to a federal court in San Francisco, and in 2010 presiding Judge Vaughn Walker ruled that the ban – although popularly approved by voters – was unconstitutional. In the decision, he wrote that the Equal Protection Clause of the U.S. Constitution (in the Fourteenth Amendment) guaranteed equal rights to same-sex couples, including the right to marry.

In an interesting twist, Judge Walker (who has since retired from the bench) later announced that he was gay with a longtime partner. Backers of the ban argued that the judge was biased in his ruling and should have recused himself from the case. This development, however, did not override the judge's decision. The case was then appealed to the higher Ninth Circuit Court who uphold the lower court's ruling.

What made the Ninth Circuit's ruling different from the others?

In their 2-1 decision this month, the Ninth Circuit judges upheld Judge Walker's decision: they determined that the ban deprived gay and lesbian couples of their guaranteed civil rights, and was therefore a violation of the Constitution’s Equal Protection Clause. But the two courts used different reasoning in deciding the case. In the lower court's decision, Judge Walker examined whether same-sex couples had a constitutional right to marry, and ruled that they did. The Ninth Circuit judges, on the other hand, avoided this question, instead focusing explicitly on how Proposition 8 singled out same-sex couples and deprived them of a right that they had previously won. On this issue, the court determined that there was a lack of equal treatment.

The judges on the Ninth Circuit essentially said that Proposition 8 is unconstitutional not because it prevents gay couples from getting married, but because it creates different tiers of privilege for different types of people. And that, they ruled, goes against the constitutional mandate that citizens receive equal protection of the laws.

In the ruling, Judge Stephen R. Reinhardt wrote:

 "All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation 'marriage.' Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

Now what?

On February 22, two weeks after the Ninth Circuit's decision, ProtectMarriage.com, a coalition of conservative and religious groups that have long backed the ban, asked the Ninth Circuit to rehear the case with a larger panel of judges (eleven of them, instead of three). In early December, the U.S. Supreme Court decided to take on the issue - probably this spring - and its nine justices will now get the final word.

What are common arguments for and against same-sex marriage?

Proponents of same-sex marriage argue that the freedom to marry is a fundamental right in American society that should extend to all couples regardless of gender. Denying gay and lesbian couples this right, they argue, is discriminatory, illegal, and based only on prejudice.

Opponents argue that marriage is a cherished institution historically defined as a union between a man and a woman. Allowing same-sex couples to marry, they insist, will fundamentally weaken and undercut the conventional purpose of marriage (namely procreation and child rearing). Factions within a number of religious groups have also been vocal and politically active in opposing gay marriage, arguing that, among other things, it is contrary to God's will and normalizes homosexual behavior (that they consider a sin).