The U.S. Supreme Court has decided to take up Proposition 8, California's voter-approved ban against same-sex marriage. Justices will also consider whether Prop 8 backers have legal standing to bring the case.
There is nothing in the order that would lift the Ninth Circuit Court of Appeals' stay on gay marriage licenses, so same-sex marriage licenses won't be able to be issued while the case is being decided. If the court decides Prop 8's backers don't have standing, the High Court would not take up the larger Constitutional question. In that case, the Ninth Circuit's decision would stand since Prop 8 would have no one defending it, which would allow for same-sex marriages.
Ted Olson, one of the lead lawyers who’s argued to overturn California’s ban on gay marriage, lauded the court's announcement: “We said it in our briefs filed in the Supreme Court that this case was a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry and we could not be more gratified that this is the case that the United States Supreme Court will have before in respect to these issues.”
Attorney Andy Pugno represents Protect Marriage, the group that sponsored Prop 8. He said the High Court's decision will have a lasting effect: “If, as we hope, the court upholds Proposition 8 and says that this is something that belongs to the states to decide for themselves — whether to experiment with same-sex marriage — then that’ll be the end of that legal issue but the policy issue will continue to belong in the public forum and the democratic process.”
The Court’s announcement Friday gives hope to Prop 8’s backers. If the justices had decided not to hear the case, then gay marriage could have proceeded in California.
“We have done our best to make sure that the vote of the people in traditional marriage get a full and fair defense," Pugno said, "especially in light of our governor and attorney general refusing to defend the vote of the people and in fact jumping the fence to the other side and agreeing that Prop 8 should be struck down.”
Georgetown Law School Professor Pamela Harris said the Supreme Court justices see Prop 8 as a real “legacy decision...it’s going to be viewed in the passage of time. Opinions on this are changing so quickly, that they really may find themselves on the wrong side of history in a way that could matter to them."
The case is not the only same-sex case being considered by the High Court. It also decided to review the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), SCOTUSblog reports.
Arguments in both gay marriage cases are likely to happen between March 25 and 27, with a decision in late June.
California’s Supreme Court tossed out the state’s ban on same sex marriage in 2008. Less than four months later, voters passed Proposition 8, and the ban was on again. The issue has been in court ever since. In the interim, several thousand same-sex couples have gotten married.
The Ninth Circuit Court of Appeals ruled that once a state grants the right to same-sex marriage, it’s unconstitutional to take it away. The larger legal issue that may be addressed by the U.S. Supreme Court is whether the Equal Protection Clause of the 14th Amendment prohibits the state of California from defining marriage as the union of a man and a woman.
Four of the nine Supreme Court justices had to agree to consider California’s same-sex marriage ban for the case to be taken up this term.
On Friday, California Lt. Governor Gavin Newsom pondered the repercussions of his gesture as mayor of San Francisco - making marriage licenses available to 4,000 gay and lesbian couples in that city. Eight years ago, that brief burst of matrimony propelled the issue of marriage equality to public prominence as nothing else had.
At the time, other Democrats criticized Newsom for going too far. They favored “domestic partnerships” or “civil unions” over “gay marriage.”
Newsom said his own father, a judge, felt the same way.
"I’ll never forget, in 2004, when we did those marriages at city hall in San Francisco (he) was vehemently opposed to what I’d done," Newsom recalled. "An Irish Catholic, six brothers and sisters, grew up in the church - I went to Jesuit universities because he went to Jesuit universities - said ‘can’t we just call it something else?'"
Even though California’s Supreme Court ordered San Francisco to stop issuing the marriage licenses after a month - and nullified the same-sex marriages already performed - Newsom said those ceremonies lent a human face to discrimination. He believes there’s clear momentum behind legalization now, and for proof he considers his father’s change of heart.
"A reporter asked my father what his position was on same-sex marriage and he said ‘I’ve finally come around to my son's and others’ point-of-view.’ That was just a couple years ago," Newsom said. "Interestingly he never told me directly, I picked it up in the paper."
Below is a recap on the issue in California:
This story has been updated.