The Supreme Court of the United States will soon return its opinion in the Proposition 8 California gay marriage case.
Here is an infographic explaining the different ways the court can rule. We’ll discuss what outcomes are likely, and why, after the graphic.
Just Remind Me, What Is The Proposition 8 Case Again?
Proposition 8 came about as a result of another lawsuit that, in the summer of 2008, served to overturn California’s ban on same-sex marriage.
Anti-gay marriage groups quickly mounted a campaign to put a gay marriage ban on the ballot to carve out a “marriage is for heterosexuals only” clause in the California constitution.
In November 2008, the measure passed and same-sex marriages were once again banned in the sate — though a later state court action said that those marriages carried out over the summer could not be nullified.
A federal lawsuit (known as Perry v Schwarzenegger, Perry v Brown and, for the Supreme Court, Hollingsworth v Perry) was filed in 2009 by two couples, Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo.
Both marriage equality advocates and Proposition 8 defenders agreed this would be a landmark case and so the stakes were, and still are, high.
A trial in a San Francisco District Court culminated in Judge Vaughn Walker ruling that Proposition 8 should be struck down. The case was, after some legal tussling about several issues, a few of which we shall come to below, then appealed to the Ninth Circuit Court of Appeals.
A three-court panel for the Ninth Circuit ruled to uphold Walker’s ruling that Proposition 8 should be struck down. The pro-Proposition 8 side was then denied a hearing before the full ten-panel court and so appealed to the Supreme Court of the United States.
The Supreme Court of the United States heard arguments in this case in March 2013. While the justices appeared leery of intervening in the case, they gave little indication of how they might rule.
What is the Most Likely Outcome in this Case?
Analysts predict that the most likely outcome in the Proposition 8 case is that the Supreme Court of the United States will decline to review the law and will allow Judge Vaughn Walker’s August 2010 ruling to go into effect, legalizing marriage equality in California once more.
This may seem like the less sexy option of all the others and yet, alongside this Proposition 8 ruling, we also expect to see a couple of important but quite technical details addressed by the court that, despite seeming abstract, could have wider implications for gay marriage rights.
The Issue of Standing in the Proposition 8 Case
We have previously covered the standing issue in some detail here but, briefly, standing in its most simple terms relates to who has the right to intervene in a particular court case.
In Perry, the California administration refused to defend Proposition 8. The chief group behind Proposition 8, ProtectMarriage, put themselves forward as so-called “defendant intervenors.”
Judge Vaughn Walker allowed this but noted in his August opinion that he did so as a matter of courtesy and not legal requirement –this threw open the door to the issue of standing. Did Proposition 8 defenders have the right to defend the law at all?
After lengthy deliberations where the Ninth Circuit Court of Appeals punted the matter back to the Supreme Court of California, it was decided that where a state allows for a ballot initiative process, it is vital that a proposition on that ballot can be defended by those who sponsored the proposed law.
However, the controversy has rumbled on and analysts suspect that the Supreme Court of the United States might want to clarify this matter, especially because the standing issue also plays a part in the other important marriage equality case before the SCOTUS, Windsor v. United States.
The SCOTUS may decide it doesn’t have standing to rule in this case because Proposition 8 defenders do not have standing to defend the law and this would, in turn, allow for marriage equality to resume in the state.
A second issue relates to the legal tests used in this case, and this is perhaps even more important than the standing issue.
Are Gay Rights Deserving of Strict Scrutiny?
When Judge Vaughn Walker ruled in the Proposition 8 case in 2010, he did so noting that Proposition 8 failed to pass even the lowest level of judicial review.
He included a caveat to this, however: that he thought there was more than enough reason to apply strict scrutiny to gay rights cases, which would mean the highest and toughest level of judicial review.
We have previously covered the issue of scrutiny in some detail here and so we will not unpack it too far except to say that it would be advantageous for gay rights across the United States if the Supreme Court was to decide that an elevated level of scrutiny should apply.
Were this to happen it could mean that, from this point on, all laws across the United States would need a much higher level of justification before anti-gay discrimination could be deemed constitutional.
Most laws facing a strict scrutiny test will fail, and so it is easy to see how this alone could serve to topple many marriage equality bans.
While the Supreme Court does not have to address this topic, a reexamination of what level of judicial scrutiny gay rights should be afforded is long overdue, so any language relating this topic will be closely scrutinized.
When Could Marriage Equality Begin In California Again?
This will depend on the court’s ruling.
If the court does decide to rule in this case, whichever way, the ruling may be subject to a petition for a rehearing (within 25 days) and that would slow down the reinstatement of marriage equality.
If the Court decides it does not have standing or declines to rule, it will be up to the Ninth Circuit to decide the time frame, but a long delay is unlikely. This means that marriage equality could very well be a reality in California in the next few months.
Image credit: Thinkstock. Infographic credit: AFER.