Supreme Courts to Decide Gay Marriage

by John M. Curtis
(310) 204-8700

Copyright March 24, 2013
All Rights Reserved.                                         

        When the U.S. Supreme Court meets March 26 to hear oral arguments on California’s 2008 Prop 8 Defense of Marriage Act, it’s going to be difficult for the justices to ignore case law on civil rights and sexual orientation..  U.S. District Court Judge Vaughn Walker tossed out California’s voter-approved Prop 8 that defined marriage as a relationship between a man and a woman.  “Only marriage between a man and a woman is valid or recognized” in the state, read the old Defense of Marriage Law known as Prop 22, passed in 2000.  When the State Supreme Court tossed out Prop 22 in 2008, proponents of DOMA—largely financed by the Salt Lake City Mormon Church and Denver-based evangelical church called Focus on the Family—introduced Prop 8, the latest incarnation of DOMA.  While Prop 8 passed with 52% of the vote in 2008, the San Francisco-based U.S. 9th Circuit Court tossed it out. 

            Ruling on Prop 8’s [Califoria] constitutionality in August 2010, Walker said the voter-approved initiative violated the due process and equal protection of same-sex couples in California.  “Prop 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” said Walker, referring to Prop 8 proponents that hark back to the Bible or religious tradition for their legal rationale.  “Indeed, the evidence shows Prop 8 does nothing more that enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” prompting Walker to invalidate it.  Instead of resuming same-sex marriage in California, Walker ruled it should be on hold pending Prop 8’s formal appeal.  In Feb. 2012, the 9th Circuit Court upheld the District court that Prop 8 was unconstitutional.  Now the conservative-leaning U.S. Supreme Court gets its crack.

             While no one has a crystal ball, it’s going to be difficult for justices to hear traditional or church-based arguments upholding a ban on gay marriage.  Whether admitted to or not, churches do not issue marriage licenses, that’s something left to the states, counties and cities.  Whether or not a church refuses to solemnize same-sex marriage, the state, county or city doesn’t have the same luxury to discriminate.  When former President Bill Clinton signed federal DOMA into law in 1996, defining marriage as a contract between a man and a woman, it was designed to prevent same-sex couples from collecting federal benefits.  Much of the argument to uphold DOMA revolves of whether the justices accept legal precedents over the past 10 years that treats sexual orientation the same as civil rights.  When the Massachusetts Supreme Judicial Court ruled in 2004 against domestic partnerships, they cited Brown v. Board of Education.

             If the Supreme Court overturns Prop 8, it could reverse DOMA laws in states around the nation.  Several states including Maine, Maryland, Massachusetts, New Hampshire, New York, Washington, Vermont and Washington, D.C. already marry same sex couples.  Thirty-one other states have statewide bans on same sex marriage.  Tossing Prop 8 would erase DOMA laws around the country.  Whether or not churches decide to marry same sex couples, the state doesn’t have the luxury to pass judgment on whom applies for marriage licenses.  Tossing out Prop 8 or DOMA would establish same-sex marriage as a fundamental Constitutional right.  While justices rule to strike down only Prop 8, it would leave other DOMA laws in place around the country, forcing individuals states into litigation.  Striking down Prop 8 and leaving DOMA untouched would be inconsistent and controversial

                 When you really look at what the Supreme Court must decide on Prop 8 and DOMA, it involves extending the same Constitutional protections for race to sexual orientation.  Proponents of Prop 8 or DOMA don’t have a leg to stand on if the High Court decides that civil rights apply to sexual orientation.  Once that’s established, there’s no longer any basis to discriminate against gays and lesbians on matters involving the state.  Because churches fall under the Separation Clause, the Supreme Court can’t rule on whether or not churches can discriminate against gays and lesbians.  When it comes to government agencies, they must follow state and federal laws.  All indications point toward the justices extending the Bill of Rights to sexual orientation, making it illegal for the state to discriminate against gays and lesbians when it comes to issuing marriage licenses.

             National polls show that the public has caught up with permitting same-sex couples to marry.  When California voters passed Prop 22’s Defense of Marriage Act in 2000, a California Field Poll showed that 61% of voters approved the initiative.  Today, it’s exactly the opposite, with 61% of voters supporting same-sex marriage.  With California’s 9th Circuit Court agreeing that Prop 8 was unconstitutional in 2012, it’s going to be difficult to argue before the Supreme Court that things have somehow changed in 2013.  House Speaker John Boehner (R-Ohio) told ABC’s Martha Raddatz  March 18 his views on gay marriage wouldn’t change.  “I believe that marriage is a union of one man and one woman. . . It’s what I grew up with.  It’s what my church teaches me.  And I can’t imagine that position would ever change,” said Boehner.  When the Supreme Court rules, Boehner won’t take his orders from the Pope.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.