How the Supreme Court Can Rule in the Proposition 8 Case

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.

Outcomes in the Perry v Hollingsworth Case

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.


Sarah Hill
Sarah Hill4 years ago

The people of California have voted on this the courts need to rule with them.

Pamela W.
Pamela W4 years ago

LOL Dale ..... Think I should've made that message "Please beam up ScottD" - never thought of that before !! Some people come on here with bad-habits from "elsewhere" and just jump in "feet first" ...... they often don't last long !! Others (the more intelligent ones) wait a day or two and realise we are NOT the same as "elsewhere" and tend to adapt - and are very welcome !!
Getting back to the article, but also your mention of "sour grapes", France has passed the necessary legislation ..... those who never thought that it would go through, are now suffering from a very nasty case of "acid indigestion" from their "sour grapes" LOL !! As my adopted country, I am very PROUD of France for pushing this through along with other "delicate" matters which are still "under discussion" elsewhere throughout the world. I'm quite amazed just how many highly religious people here (people I know personally) are NOT against SSM and that is truly inspiring !!

Dale O.

Greetings, Pamela W. Good to hear that she is fine which is just purrfect (had read Suba G’s earlier comments). An interesting thread most certainly. Even if Scott D has been beamed into cyberspace by Scotty’s splendid work with transporters, many people in the comments below have also responded to the same person…so there will be a bit of an ‘after taste’ of the sour grapes that Scott D left for others new to this article to get the full bodied and descriptive flavours in some of the earlier comments. Some rancid soup that he concocted is still visibly floating around.

Pamela W.
Pamela W4 years ago

Sorry Suba ..... only popped on here for a few minutes during (my) night - so just seen your question to me - yes she's fine, thanks - have sent you a PM to explain !!

Hi Dale !! This thread looks weird now ..... I take it that Scott's comments have been taken off AGAIN, leaving you apparently "talking to yourself" for over half an hour, LOL !!
Hopefully that means the distant planet got our message ....... "Please beam-up Scotty" ..... with apologies to all fans of StarTrek, for borrowing and distorting that well-known phrase !!!

Dale O.

Fascinating discussion but in Canada, gay marriage is legal across the entire country and has been for years. Scott D seems to believe that disaster and mayhem is at hand if there is gay marriage but Canada has been a liberating example of how easily equality can be achieved. The country has not fallen down a deep, dark chasm on its way to the fire and brimstone of a fiery doom in an abyss below. Bolts of lightning are not being hurled at the country on a daily basis. Life carries on as usual. The sun is shining.

Dale O.

Teresa B, it is amazing how some believe that gay marriage will result in the collapse of society itself and I do believe that a subspecies of the Parrotis Squawkamundis has migrated over to this thread. The loud and shrieking cries can be evidenced right here. Observe how Scott D’s feathers are being ruffled yet again by a sane discussion of equality and civil rights for all. Hiding under a bridge or dark cave, makes no difference.

Dale O.

Always a fascinating and sometimes divisive topic at hand here for some who are unable to handle equality…but it most certainly appears as if I missed part one of How Not to Make Friends and Burn Your Bridges recently featured in this thread. Scott D pontificates: “Kids can be cruel in school and you put an innocent kid through the bullying he would receive over having gay parents especially 2 men and there will be problems.”

Dale O.

Earth to Scott D: What remote area of the galaxy did you travel from before finding the planet Earth to amuse yourself with? Are you being a downer on this thread and annoying people with your less than generous attitude not to mention bigotry? One so loves to rain on your hit parade as your attitude certainly needs to be reined in. You lament with a great gnashing of teeth: “Kids can be cruel.” We will pause as you pick up the chards of calcium from those teeth that fell to the ground.

Dale O.

Cruel? Kids? Oh? Really? You just discovered that while attending class in high school last week as you tried to study humans? You certainly have a lot to learn about Earthlings, but who knows from what distant reaches of the galaxy that you may have travelled from. Kids have been cruel since the dawn of time, so it hardly matters whether or not some are gay or straight. The cruel kids will always find some reason to pick on someone. If one isn’t gay then they will find something else to focus on such as the fuel burned in your star ship for example.