Southland residents on both sides of the same-sex marriage debate began a waiting game this week as the fate of Proposition 8, the voter-approved measure that restricts marriages in California to unions between a man and a woman, was left in the hands of the U.S. Supreme Court.
Prop. 8 was enacted by voters in 2008 but was deemed unconstitutional last year by a federal appeals court, which found the initiative was at odds with U.S. Constitution’s 14th Amendment guaranteeing equal protection under the law.
The Supreme Court heard arguments on the issue on Tuesday, but a decision likely won’t be issued until June.
“Today’s oral arguments before the Supreme Court over the constitutionality of Proposition 8 once again made a powerful case for marriage equality,” Assembly Speaker John Perez, D-Los Angeles said Tuesday. “I am confident the Supreme Court will make a ruling based on justice and strike down Proposition 8, and DOMA (the federal Defense of Marriage Act) as well.”
Perez, who is openly gay, called Proposition 8 “a clear violation of the values of equality in the eyes of the law that emanates from the Constitution.”
Some observers have suggested that the nation’s highest court appeared to be split 4-4 on the issue, with Justice Anthony Kennedy as the swing vote. His questioning during the oral arguments appeared to indicate a reluctance to take any action. That could leave the court without a majority vote and unable to make a decision — meaning the appeals court ruling striking down the proposition would stand.
The court could also determine that the proponents of Proposition 8 lacked standing to bring the appeal in the first place — a question that was argued before the California Supreme Court prior to the appeals court decision. If the U.S. Supreme Court takes that position, it would vacate the appeals court ruling, but uphold the original federal court ruling that also struck down Prop. 8.
Both possibilities would have the same effect of striking down Prop 8 in California, however, they would also mean the Supreme Court failed to make a definitive federal decision on the issue of same-sex marriage — which some advocates had been hoping for.
Randy Thomasson, president of SaveCalifornia.com and an opponent of same- sex marriage, said Monday the U.S. Supreme Court’s review of Prop. 8 goes beyond the issue of marriage.
“This case is as much about the survival of our Republic as it is about natural marriage between a man and a woman,” Thomasson said. “We are a constitutional government that abides by written laws and their original meanings. A republic under the thumb of judges who act like kings has ceased to be a republic.
“The unchanging laws of nature require two distinct sexes for humans — male and female,” he said. “… In contrast, homosexual behavior is neither natural nor healthy, and doesn’t qualify for marriage, which requires one man and one woman, no more, no less.”
In March 2000, California voters approved Prop. 22 that specified in state law that only marriages between a man and a woman are valid in California. But in May of 2008, the state Supreme Court ruled the law was unconstitutional because it discriminated against gays, and an estimated 18,000 same-sex couples got married in the ensuing months.
Opponents of same-sex marriage quickly got Prop. 8 on the November 2008 ballot to amend the state constitution, and it was approved by a margin of 52.5 percent to 47.5 percent. The approval was followed by statewide protests and lawsuits challenging Prop. 8’s legality.
In May 2009, the California Supreme Court upheld Prop. 8 but also ruled that the unions of roughly 18,000 same-sex couples who were wed in 2008 prior to its passage would remain valid.
Same-sex marriage supporters took their case to federal court and U.S. District Judge Vaughn R. Walker ruled in August 2010 that Proposition 8 “both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”
Backers of Proposition 8 — ProtectMarriage.com — appealed to the 9th Circuit, because then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown declined to do so. The appellate court heard arguments in 2011 but put a decision on hold while it awaited a state Supreme Court ruling on the ability of Prop. 8 backers to press the case forward despite the state’s refusal to appeal.
Once the state Supreme Court decided that Prop. 8 supporters had legal standing, the 9th Circuit moved ahead with its consideration of the case, hearing more arguments on a motion by Prop. 8 backers asking that Walker’s ruling be thrown out because the judge was in a long-term same-sex relationship that he had not disclosed.
A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled last year that the proposition’s primary impact was to “lessen the status and human dignity of gays and lesbians in California.”
“It stripped same-sex couples of the ability they previously possessed to obtain and use the designation of ‘marriage’ to describe their relationships,” according to the court’s decision.
“Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in child-rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.
“Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard those liberties.”
The U.S. Supreme Court also heard arguments Wednesday over the federal Defense of Marriage Act, which was enacted in 1996 and defined marriage solely as a union between opposite-sex couples.