SCOTUS Takes on Prop 8

This week, Washington Post/ABC News released a new poll showing that support for marriage equality in the U.S. has reached an all-time high of 58%. This comes just before the U.S. Supreme Court takes up two marriage equality cases, one challenging California’s Prop 8 and one challenging the Defense of Marriage Act. These cases could be serious game changers but are also more complicated than they seem. To help you make sense of what these cases could mean for the future of marriage equality in the U.S., I’m going to go over their scope and potential outcomes. This will be a two-parter: Part 1 (this post right here!) will be on the Prop 8 case and Part 2 will be on the DOMA case.

The Supreme Court will be hearing the case of Hollingsworth v Perry starting next this coming Tuesday. The defendants are couples Kristin Perry and Sandra Stier (together 10 years) and Paul Katami and Jeffrey Zarillo (together 12 years). Kristin and Sandra got married back in 2004 when San Francisco began offering marriage licenses. The California Supreme Court later ruled that the San Francisco’s same-sex marriage licenses were invalid. In 2008, Californians voted for Proposition 8, adding a clause to the California constitution that defines marriage as between a man and a woman. Both couples attempted to get marriage licenses, were denied, and subsequently sued the State. The California Supreme Court upheld Prop 8 back in 2009 but a federal court later overturned it. The U.S. Supreme Court will now be making the final ruling on whether Prop 8 violates the 14th Amendment.

Basically, all this means the Court will decide whether California’s ban on same-sex marriage is constitutional. However, it is important to note that the Supreme Court will not just be making a “yes” or “no” ruling. How the ruling is written will decide the scope of when states can or cannot ban same-sex marriage.

SCOTUSBlog lists 5 possible outcomes of the case:

  1. The Court could rule that bans on same-sex marriage are constitutional. This would preserve the status quo and ultimately be the worst possible outcome.
  2. The Court could rule that bans on same-sex marriage are unconstitutional. This would essentially legalize same-sex marriage in every state in the U.S. Saying that, the true outcome would likely be a bit different. I’ll get to more on that in a second.
  3. The Court could rule that civil unions are unconstitutional. California currently allows same-sex civil unions, which are used to give same-sex couples a “separate but equal” institution that has many of the legal rights of marriage but remains inferior in name and meaning. If the Court takes this route, they are saying that States can either ban same-sex marriage or allow it, but cannot create a second “equal” institution. Essentially, this ruling would bring marriage equality in the 8 states that currently have civil unions: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
  4. The Court could rule that a state that allowed same-sex marriage is not allowed to then replace that right with civil unions. This ruling would limit the decision to only California, creating marriage equality in that one state but no other.
  5. The Court could reject the ruling based on lack of standing of the defendants. Ok, bear with me here because this is where things get a bit technical.  The State of California refused to defend Prop 8 in court. Therefore, outside anti-equality groups stepped in to defend the ban. The “Hollingsworth” in the case title comes from Dennis Hollingsworth from His group and others will be defending the case. However, they only have standing to take this issue to court if they can show that they would be personally harmed by same-sex marriage. If the Supreme Court decides they don’t have standing to bring the case, the ruling of the lower court applies. This ruling from the District Court was against Prop 8, but the scope of the ruling is unclear. According to SCOTUSblog, it could be interpreted as allowing just the plaintiffs in the case to get a marriage license or could expand the right to marriage to all same-sex couples in California.

Even if the U.S. Supreme Court chooses the most expansive ruling that would make bans on same-sex marriage illegal in all 50 states (outcome #2), it would not necessarily bring marriage equality to all corners of the country. As you probably learned in school, the Supreme Court ruled in Brown v Board of Education back in 1954 that segregation in public schools was illegal. However, the South did not even begin to desegregate until a decade later. This is because the Supreme Court has no mechanism for enforcing their rulings.  In the case of Brown v Board of Education, school boards and governors protested the ruling by closing schools rather than desegregate or just flat out refused to follow the law. Judges from lower courts sometimes ruled in favor of segregation just to spite the Supreme Court. State governments passed laws voiding the Supreme Court decision. Real change didn’t happen until public opinion in Southern States began to turn against segregation.

Even a 50-state decision in Hollingsworth v Perry might not bring marriage equality to everyone, but a lot of states are already on the cusp of marriage equality laws. A positive ruling from the Supreme Court could speed up the process. There would likely be holdouts, primarily in the most conservative states. But with 58% of U.S. Americans supporting equality and growing yearly, they would have to come around eventually. Even so, 50 years after Roe v Wade we are still fighting for basic contraception and abortion rights. No matter how happy we may be with the decision in Hollingsworth v Perry, we cannot let our guard down. We will be fighting for basic marriage equality rights for all U.S. Americans for many years to come.

Part 2 about U.S. v Windsor, the case challenging DOMA, will be posted on Friday.

P.S. for Illinois residents: A bill that would bring marriage equality to Illinois passed the state Senate and will be voted on next week by the House. But, it does not yet have enough votes. Drop everything you were planning to do for the next 15min, look up the contact information for your state representative, and send him/her a quick email, tweet or phone call asking them to support marriage equality.

Update: Part 2 on the DOMA case has been posted.

Featured image by Jamie Bernstein

Jamie Bernstein

Jamie Bernstein is a data, stats, policy and economics nerd who sometimes pretends she is a photographer. She is @uajamie on Twitter and Instagram. If you like my work here at Skepchick & Mad Art Lab, consider sending me a little sumthin' in my TipJar: @uajamie

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One Comment

  1. Much as I hate standing rulings, #5 might be one of the best outcomes from a conservative court, since it heavily undercuts the idea that the state has any valid reason to confine marriage to one man and one woman. It would set up future cases pretty well, since queer couples could point to the court’s decision that harm can’t be shown as resulting from ssm.

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