Politics, government and public life for Southern California

Words of commitment and legal questions surround Prop 8 case

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A display of political buttons opposing Proposition 8 during a 2010 San Francisco rally to celebrate the ruling to overturn the voter-approved ban on same-sex marriage.

On Tuesday, the US Supreme Court hears oral arguments on California’s Proposition 8, which restricts marriage to one man and one woman. The following day, the justices will hear arguments on the federal Defense of Marriage Act, or DOMA.

Word of commitment

The Proposition 8 case is Hollingsworth v. Perry. "Perry" is Kris Perry, half of a lesbian couple from the Bay area.

But there’s another couple in the suit: a gay couple from Southern California, fitness instructor Paul Katami and multiplex theater manager Jeff Zarillo. It’s been a long four-year journey through the courts for the two men.

In a conference call with reporters, Zarillo said the case brought the couple closer together, and made them want even more to claim the title “married.”

"Having access to that language, it affirms the commitment that we have built," said Zarillo. "That word is so important and if it wasn’t so important, we wouldn’t even be having this conversation."

Zarillo said he and Katami thought about tying the knot during the five months in 2008 when same-sex marriage was legal in California, but they worried those marriages might be overturned. He said they would like to have children, but only after a legal marriage.

Legal questions

With "legal" marriages in mind, here's an interesting thought about the Prop 8 case: A Georgetown University legal scholar says it might not be about same-sex marriage.

Neal Katyal, who served as acting Solicitor General of the United States two years ago, says neither the Prop 8 case nor the DOMA case "presents the question of whether or not it is unconstitutional for a state to not recognize same-sex marriage."

Katyal says Prop 8 is the more “subtle” of the two cases because after a 2008 state Supreme Court ruling, same-sex marriage was legal for a few months in California. Voters then made it illegal by passing Prop 8, which was then overturned by the Ninth U.S. Circuit Court of Appeal.

The Ninth Circuit justices said their decision to overturn Prop 8 had to do with whether voters could take away a right—not with whether same-sex marriage is legal.

Now the U.S. Supreme Court has to decide what the Prop 8 case is about. Is it about the legality of same-sex marriage?

"Whether the court will ultimately think that’s a different question or not remains to be seen," says Katyal.

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