On March 26th, the United States Supreme Court heard oral argument in Hollingsworth v. Perry, the case that will decide the constitutionality of Proposition 8, the initiative petition that banned same-sex marriage in California by defining marriage as a union between a man and a woman. Follow this link to listen to the oral arguments and read the transcript of the hearing.

California’s Stormy Relationship with Gay Marriage

California law first defined marriage as between a man and a woman, effectively prohibiting same-sex marriage, in 1977. This prohibition was expressly reinforced in 2000 with the passage of Proposition 22, explicitly defining marriage as the union of a man and a woman. Prop 22 was finally declared invalid by the California Supreme Court in 2008.

Meanwhile, the state legislature had in 2005 passed a law legalizing same-sex marriage, although it was vetoed by then-Governor Arnold Schwarzenegger. Another bill was passed in 2007 and again vetoed by Governor Schwarzenegger.

While that legislative activity was going on, Proposition 8, an initiative petition drafted to overrule the state law by creating a Constitutional prohibition against same-sex marriage, came to the ballot in 2008 and passed with 52.47% of the vote. Prop 8 was immediately challenged in state court and eventually upheld by the California Supreme Court in 2009.

Also around the same time, a group of six cases aimed at banning same-sex marriages was heard in the courts. The decision of In Re Marriage Cases held that statutes prohibiting same-sex marriage were unconstitutional. This decision was overturned on appeal and later reinstated by the California Supreme Court in 2008, just weeks before the passage of Proposition 8.

The litigation involving the current case soon began, when Prop 8 was challenged in federal court on U.S. Constitutional grounds. This case has now come to the U.S. Supreme Court, which heard oral argument on March 26th. A ruling could come down as early as June.

What will the court rule?

It is possible the High Court will take the easy way out and decide that the people who brought the lawsuit – proponents of Proposition 8 – lacked standing to sue, and that the suit should be dismissed. Normally it is the job of the state, through the Attorney General, to defend the constitutionality of a state law, and private citizens do not have the power to sue on the state’s behalf to enforce a law. There are reasons the court could find standing, though. The court could also decline to rule if it decides the issue is a political question best left to the political process and kept out of the courts. This justification has been used many times before in other cases.

If the court decides the case on the merits, it may well compare the case to Loving v. Virginia, the 1967 case where the Supreme Court held that bans on interracial marriage were unconstitutional. The question is whether the proponents of Prop 8 can identify a state interest in having only opposite-sex marriage that is more important than the right to marry, which the Court has determined is a fundamental right of the individual. The interest they offered in court was the state’s interest in “responsible procreation,” but judging from the questioning by the Justices, this argument did not seem to carry much weight. For instance, states allow lots of people to marry who cannot have children, such as elderly or infertile couples. And even if allowing same-sex marriage doesn’t advance the state’s interest in “responsible procreation,” does it actually do anything to harm it? Expect a discussion of these questions in the court’s opinion, if it decides the case on the merits and not on the standing issue.

Whatever the result, family law issues are here to stay

Whatever the High Court rules, will it be the final word on gay marriage in California? Recent history shows that each side of the issue will continue to press their position, whether through the courts, the legislature, the initiative process, or some other means. Regardless, same-sex couples will continue to live together as partners or registered domestic partners and will continue to encounter family law issues, including cohabitation agreements and property agreements, support payments, child custody and more. For assistance with family law matters in the San Diego area, contact the Law Offices of Andy Cook for a free consultation.