By Aaron Blevins, 8/09/2012
A decision on whether to take the case is expected this fall
The saga that is Prop. 8, a voter-approved ban on same-sex marriage, may be nearing an end, as proponents of the ban have petitioned the U.S. Supreme Court to review the constitutionality of the California ballot measure.
The Supreme Court may decide not to hear the case, which would validate the federal 9th Circuit Court of Appeals decision in 2010 that struck down Prop. 8. If the court does hear the case, a ruling could be made by next summer. The court is expected to decide whether to hear the case this fall.
“I think many people think it’s likely [that the court will hear the case] because of the importance of the issue and the impact,” said Dave Fleischer, who directs the leadership lab at the L.A. Gay & Lesbian Center.
He said the Supreme Court could be closely divided on the issue, and that he has heard pessimism and optimism from pro-same sex marriage legal experts. If the case reaches the Supreme Court, there are a variety of legal frameworks the justices could analyze to reach either decision, Fleischer said.
The same-sex marriage votes of four states — Maryland, Maine, Minnesota and Washington — on Nov. 6 could play a role in shaping any decision the court makes, especially if proponents do well, Fleischer said.
“The U.S. Supreme Court rarely operates far in advance of public opinion,” he said, adding that polls show the LGBT community ahead in three of the four states.
However, Fleischer believes that the pro-same sex marriage camp could have difficulty at the Supreme Court level. He noted the proponents’ track record on ballot measures in different states since 1998.
“We have one win and thirty-five losses,” Fleischer said. “That is very different that the situations on other issues.”
He said he believes that the LGBT community has yet to demonstrate the broad support that the Supreme Court would need to rule in its favor.
However, if the court senses that LGBT couples are in similar situations as heterosexual couples or if it compares Prop. 8 to other civil rights advocacies, it could rule favorably, Fleischer said.
Rebekah Orr, of Equality California, said the Prop. 8 process has been heart-breaking, as thousands of same-sex couples across the state yearn for the ability to marry. However, the organization is optimistic, and its stance was reaffirmed by the two federal courts that decided against the ballot measure.
“I think that it would be a really wonderful end to what has been a tough road,” Orr said.
She said that, in the last few years, California residents have come to understand why marriage is so important to same-sex couples — even as those couples were refused the ability to wed.
“It’s not a question of ‘if,’ it’s really a question of ‘when,’” Orr added.
She said the issue touches on the core of getting to full acceptance, but advocates for the LGBT community still have a “tremendous” amount of work to do. Orr said LGBT individuals do not always get the healthcare they need, LGBT elders are not always cared for properly and children are still bullied in school due to their sexual identity or perceptions about their sexual identity.
“That’s not the world we envision,” she said.
According to pro-gay marriage advocacy group Courage Campaign, Protectmarriage.com is the ballot committee that petitioned the case to the U.S. Supreme Court. The plaintiffs will be represented by attorneys from Gibson, Dunn & Crutcher and Boies, Schiller & Flexner.
Rick Jacobs, the founder of the Courage Campaign, issued a statement after Protectmarriage.com had filed its petition. He referenced the words of the late Ronald Reagan: “Well, there they go again.”
“The President of the United States, a majority of the American public, two federal courts and most of America’s NATO allies view marriage equality as a fact,” Jacobs said. “But Brian Brown, Charles Cooper, Andy Pugno and Mitt Romney continue to stampede over the cliff of historical irrelevance, insisting that America will cease to function if gays and lesbians can marry. The major problem with this thesis is that seven states and the District of Columbia welcome marriage for all and the country functions just fine — the sun still shines and the world still rotates on its axis. We can only hope that the Supreme Court will once again act for all Americans on the right side of history, not for a few hysterical ones scared of love.”