In a decision handed down June 26, 2013, the Supreme Court dismissed an appeal to rule on the constitutionality of Proposition 8 leaving the lower court’s decision (declaring Prop 8 unconstitutional) the final word on the matter.
Gay marriage has had a rocky history in California. In 2000, Proposition 22 was passed by a majority of the voters. It amended the California Family Code such that only marriages between men and women could be recognized. This invalidated out-of-state same-sex marriages (which had been recognizable until then).
In May 2008, the Supreme Court struck down the statute as unconstitutional. Same-sex marriage was legal in the Golden State. Thousands took advantage of the opportunity soon after.
Just six months later, Proposition 8 was passed by a narrow majority. It amended the State Constitution to prohibit same-sex marriage (though the 18,000 same-sex marriages entered into between May 15 and November 5 were recognized).
Two years, later, on August 4, 2010, United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 in the case Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution. Walker issued an injunction against enforcing Proposition 8; nevertheless, he also issued a stay to determine suspension of his ruling pending appeal. So, despite Walker’s decision, the right to same-sex marriage was stayed until the decision could be reviewed.
Another two years, and another decision. On February 7, 2012, a Ninth Circuit Court of Appeals panel affirmed the decision that Proposition 8 was unconstitutional. Neither Governor Brown nor Attorney General Harris chose to defend Proposition 8. However, the stay remained in place as proponents of Proposition 8 appealed the case (now captioned Hollingsworth v. Perry).
The Supreme Court had five options at this point:
1) Uphold Proposition 8;
2) It could find that all same-sex marriage bans were unconstitutional; this would be in line with the ruling the Supreme Court concurrently made on the Defense of Marriage Act, but would involve telling the states what to do;
3) The Court could find that California was not free to provide same-sex couples with all the benefits and burdens of marriage through civil unions but withhold the designation “marriage.” This would remove same-sex marriage bans in states that have civil union laws that afford same-sex partners all the benefits of marriage save the name. While narrower in scope, it would still affect several states;
4) Dismiss the case on the grounds that the Plaintiffs had no standing to appeal the case. This would be a procedural argument with no sweeping effects (except that it would make same-sex marriage in California legal again as Proposition 8 had been found to be unconstitutional in the state).
5) Dismiss the case on the grounds that the case was “improvidently granted,” i.e. the case was such a mess that it never should have made it to the Supreme Court.
Option #4 was the least risky, politically, and it is the option that was ultimately chosen.
“‘Standing’ must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance… The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a ‘generalized grievance’—no matter how sincere—is insufficient to confer standing.”
The Court further held that the Ninth Circuit Court of Appeals lacked authority to decide the case on the merits either. This means that Walker’s 2010 decision remains the only valid one.
Governor Brown, in the wake of today’s decision, has ordered that Court Clerks resume the issuance of same-sex marriage licenses once the Ninth Circuit Court confirms that the stay has been lifted, which should happen some time within the next 30 days.
Edit: The 9th Court lifted the stay faster than anyone had anticipated–same-sex marriages resumed on June 29, 2013!
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