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Prop. 8’s fate in the Supreme Court’s hands

By Aaron Blevins, 12/13/2012

Supreme Court justices to hear Prop. 8, DOMA cases


The U.S. Supreme Court has opted to review both the Prop. 8 and Defense of Marriage Act (DOMA) cases, an announcement that prompted hope, disappointment and anxiety for marriage equality advocates.

Same-sex marriage could be legal again in California as soon as June if the U.S. Supreme Court rules in favor of marriage equality. (photo by Edwin Folven)

Had the court decided to not hear Prop. 8, a lower court’s decision to overturn the ballot measure would have stood, allowing same-sex couples to marry once again in California. Now, the court’s ruling, which is expected by June, could have broader implications.

“In some respects, we have some mixed feelings,” Equality California spokesman Steve Roth said.

He expressed disappointment at the fact that couples would be forced to wait another six months to legally marry; however, the organization is hopeful that the Supreme Court will give equality advocates a fair hearing.

The court could rule several ways. It could issue a broader ruling that Prop. 8 violates the Constitution, a decision that could have national impacts; affirm the decision of the 9th District Court but tailor it to California; decide that the proponents of Prop. 8 do not have legal standing to defend the ballot measure; or uphold Prop. 8, allowing states to make their own determinations regarding same-sex marriage.

“There are so many different things the court could do,” Roth said. “We’re definitely confident in our arguments. …We’re certainly hopeful that the Supreme Court will recognize that Prop. 8 is really discrimination against gay and lesbian people in California.”

Equality California is in the process of launching a petition to request that President Barack Obama, who announced his support for same-sex marriage in May, file a friend of the court brief in support of same-sex marriage. Organizers are trying to garner 25,000 signatures to present to the president.

“We think it would have a strong impact on public opinion and the Supreme Court,” Roth said.

Erwin Chemerinsky, the founding dean of the law school at the University of California, Irvine, has argued civil rights cases before the Supreme Court in the past. He predicts a 5-4 victory in favor of same-sex marriage, though he wouldn’t speculate on how the court would tailor its decision.

“I’m confident in my prediction, but I also understand the anxiety of [the case],” Chemerinsky said.

He was not surprised that the court took up both Prop. 8 and DOMA. The cases are similar, but are in a different context. DOMA is a federal law, whereas the Prop. 8 case involves a right that was extended but then taken away, Chemerinsky said.

“The DOMA case poses important issues of constitutional law, and this is something that the court wants to resolve,” he added.

Chemerinsky said the nation has seen an increase in support for same-sex marriage, so the court is likely to follow suit. He said he understands how the case could be both encouraging and frightening for equality advocates.

“I think that the court knows where history is going, and the justices want to be on the right side of history,” Chemerinsky said.

Attorney Manny Medrano, of Medrano & Carlton in downtown Los Angeles, previously worked as a TV analyst and was a part of the Supreme Court press corps for four years. He said the case was unique in that the court could rule several ways.

“Everyone’s on pins and needles,” Medrano said.

He said it is difficult to “read the tea leaves” of the court, given that the justices are strong willed and have unique personalities. However, his “gut feeling” is a 5-4 victory in favor of equality.

“I think at a minimum, gay marriage is going to be legal in the state of California,” Medrano added.

He said the court may be hesitant to set a national precedent, especially after the broad criticism that resulted from its Roe v. Wade decision in the 1970s. Medrano said that case fueled the court’s greatest criticism.

The Supreme Court is expected to rule on Prop. 8 and DOMA by the end of June.



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