Analysis: Prop. 8 Case Unlikely to Result in Broad Right to Same-Sex Marriage

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Nearly five years after voters passed Proposition 8, the U.S. Supreme Court will soon decide the fate of California's ban on same-sex marriage. But will that be the final word?

Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. (Tim Sloan/AFP/Getty Images)
Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. (Tim Sloan/AFP/Getty Images)

When two same-sex couples filed a lawsuit challenging the constitutionality of Prop. 8, their attorney, Theodore Olson, described the issue in sweeping terms.

“The case we filed is not about liberal or conservative, Democrat or Republican,” Olson said. “This case is about the equal rights guaranteed to every American under the United States Constitution.”

In the summer of 2010, federal judge Vaughn Walker agreed, issuing a landmark decision declaring Prop. 8 unconstitutional -- saying there was no rational basis for denying same-sex couples a license to marry.

The 9th U.S. Circuit Court of Appeals upheld Walker's ruling in February 2012 but narrowed it considerably, saying it applied only to California, not the entire country. In the next two weeks, the U.S. Supreme Court will weigh in.

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UC Davis law professor Vikram Amar calls a broad decision declaring a fundamental, nationwide right to same-sex marriage highly unlikely.

“It's very rare for the court to invalidate the laws of two-thirds or three-quarters of the states,” Amar said, noting that when bans on interracial marriage were struck down in 1967, only 16 states had such laws -- compared with 35 that now ban gay marriage.

Since Prop. 8 passed, 11 states and the District of Columbia have legalized same-sex marriage. And John Eastman, an attorney for the National Organization for Marriage -- supporters of Prop. 8 -- hopes that discourages the high court from intervening.

“Americans across the country are grappling with an intense policy debate,” Eastman said. “And there's nothing specifically in the Constitution that decides that debate one way or the other. And the Supreme Court ought to recognize that and let it play out.”

At oral arguments in March, there seemed to be little appetite – even among the most liberal justices -- for a momentous decision in support of gay marriage.

And there are two ways for the court to avoid that legal question altogether. They could simply dismiss the case, allowing the 9th U.S. Circuit Court decision to stand. (In fact, during oral arguments, Justice Anthony Kennedy mused, “I just wonder if the case was properly granted.”)

Or, more likely, Amar said,  the court will declare that Prop. 8 proponents lacked legal standing to appeal Judge Walker's decision.

“If the case is decided on standing grounds, the thing we should focus on right away is what, if anything, the court says about the follow-on process,” Amar said.

In other words, how broadly does Judge Walker's decision apply? Not broadly at all, said Prop. 8 attorney Andy Pugno.

“If we didn't have standing, then there was no one to defend Proposition 8,” Pugno argued. “And in a case like that you can't declare a statute unconsitutional. The best you can do is grant the relief that was asked for, and that's for the two couples.”

But opponents of Prop. 8 argue that Gov. Jerry Brown would likely instruct county clerks to issue marriage licenses to same-sex couples. In that case, same-sex weddings would begin again by the end of July.

Even if the measure is upheld by the Supreme Court, the question is sure to be back on the ballot next year. Polls show well over 50 percent of California voters are now supporting same-sex marriage.