Court's decision on Prop. 8 could affect gay marriage laws across nation

Published: Saturday, Dec. 8, 2012 - 12:00 am | Page 1A
Last Modified: Saturday, Dec. 8, 2012 - 12:16 am

Gay marriages will remain on hold in California after the U.S. Supreme Court agreed Friday to review the legality of the state's same-sex marriage ban, Proposition 8.

The decision cheered proponents of the ban more than two years after a federal judge in San Francisco ruled their initiative unconstitutional. Had the justices declined to hear the case, gay marriage advocates were preparing to resume weddings as early as next week.

Though the decision delayed a resolution in California, the nation's highest court could now issue a ruling that affects gay marriage across the nation.

Simultaneously, justices agreed to consider challenges to the federal Defense of Marriage Act, which blocks gay married couples from receiving a host of federal benefits.

The separate cases, to be heard next year, will put the often-divided court at the center of highly charged political and constitutional terrain.

It "tees up the fundamental question of whether the Constitution's promise of equality for all persons applies to gay men and lesbians when it comes to marriage," declared David Gans, the civil rights director of the Constitutional Accountability Center, which supports gay marriage.

More than 18,000 same-sex marriage licenses were issued in California before voters passed Proposition 8 in 2008. The measure was ruled unconstitutional by U.S. District Judge Vaughn R. Walker in a landmark ruling in 2010, but gay marriages remained barred while proponents of the initiative appealed.

In a decision expected by June, the Supreme Court might decide that the Constitution protects same-sex marriage rights in all states, or just in California, or they might uphold Proposition 8.

Thirty-eight states, including California, have passed laws or constitutional provisions banning gay marriage. Nine states and the District of Columbia allow same-sex marriage.

Justices also left open a possibility they could decide the California case on a procedural question about whether individuals who support Proposition 8 have the legal standing to defend it in court.

"That is a very plausible way for them to duck the issue," said Vik Amar, a law professor at University of California, Davis, "if that's what they want to do."

The measure's backers moved in to defend it in court after then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown declined to on behalf of the state.

The court's decision to hear the case surprised some legal observers, who considered the prospect less likely in light of a 9th U.S. Circuit Court of Appeals decision that was made on narrow legal ground. The appeals court did not address whether gay and lesbian people may ever be denied the right to marry, ruling only that California was wrong to deny a right gay and lesbian people in California previously enjoyed.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Judge Stephen Reinhardt wrote for the appellate court. "The Constitution simply does not allow for laws of this sort."

Opponents of same-sex marriage appealed to the Supreme Court. Charles Cooper, a lawyer for Proposition 8 supporters, urged the court to take the case, declaring that "the profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples is a matter of great debate."

The lawyers who had successfully argued against the ballot measure urged the Supreme Court justices not to hear the appeal. But on Friday they said they welcomed it.

"We argued all along that the court should not take the case because we represent real individuals who have two victories in federal court, at the trial court level and at the court of appeals level; and had the court not taken the case, the case would have been over, Proposition 8 would have been declared, finally, unconstitutional, and our clients and thousands and thousands of other Californians would be allowed to get married right away," said one of the lawyers, Theodore Olson.

However, Olson said, the case is "a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry."

Meeting in a private session Friday morning, justices had to pick and choose among 10 different appeals that deal in some fashion with same-sex marriage.

Advocates from both sides voiced confidence Friday that they'll prevail once the court hears arguments, which could happen in March.

California Attorney General Kamala Harris, an opponent of Proposition 8, said the court's decision to hear the case "takes our nation one step closer to realizing the American ideal of equal protection under the law for all people."

National Organization for Marriage Chairman John Eastman called the decision "a strong signal" that the Supreme Court will reverse the lower courts and uphold Proposition 8.

As is customary, the justices didn't explain their decision about which cases to hear.

The Defense of Marriage Act, passed by Congress and signed by then-President Bill Clinton in 1996, denies a host of federal economic and other benefits to same-sex couples: They can't save money by filing joint tax returns or share federal health insurance, and surviving spouses can't collect Social Security survivor benefits, among other restrictions.

The fundamental argument against denying federal benefits for same-sex couples under the law is that it violates the Fifth Amendment's constitutional guarantee of equal protection.

"More than 100,000 same-sex couples are disadvantaged," Boston-based lawyer Mary Bonauto and her allies wrote in one brief.

The Obama administration initially defended the legislation in court, as is customary, but stopped doing so last year. House Republicans stepped into the breach, agreeing to spend up to $1.5 million to defend the law.

At Headhunters, a dance club in midtown Sacramento, a handful of gay marriage advocates waited for news of the decision on Proposition 8. They were crestfallen when it came.

"We've waited so long," said Ken Pierce, spokesman for the Sacramento-based advocacy group Equality Action Now.

Pierce had propped up a sign, "RIP Prop H8," between an arrangement of lilies and rainbow flags on the empty dance floor.

"Prop Hate," he explained.

When the decision was announced, Pierce and three other advocates left the bar for the local gay and lesbian center, where a news conference was being organized. Among them was Brian Silva, executive director of Marriage Equality USA. He, too, was disappointed, but added, "We will win at the Supreme Court."

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