Prop. 8

Frank and Joe Capley-Alfano celebrate the appeal of Prop. 8 in front of the Ninth U.S. Circuit Court of Appeals on Tuesday in San Francisco. The court ruled that the same-sex marriage ban violates the Constitution. Feb. 7, 2012. Photo by Andrew Lopez / Special to Xpress

As gay and lesbian couples in Washington began to tie the knot Dec. 9, under the state’s new law recognizing same-sex marriages, the U.S. Supreme Court agreed to hear two cases that could extend constitutional equal protection principles to same-sex couples looking to marry.

In California, same-sex marriage rights have been a roller coaster of ups and downs. The state supreme court legalized same-sex marriage for about seven months in 2008 before voters approved Proposition 8, a state constitutional amendment banning same-sex marriage. They were again briefly legalized after a federal district court struck the amendment down in August 2010.

In total, about 18,000 same-sex marriages have been legally performed in California, but their state recognition has been called into question since the passage of Prop. 8.

“At this point in my life, I’m not looking to be married, but I may want to at some point,” Juan Guzman, SF State Queer Alliance president, said. “It’s important to have the right that everybody else has to show my love.”

The highest court in the country has been asked to determine once and for all if a ban on same-sex marriage is unconstitutional in the case Hollingsworth, et. al. v. Perry, et. al. The case questions whether a state ban on same-sex marriage violates the equal protection clause of the 14th Amendment, essentially amounting to discrimination based on sexual orientation.

The 14th Amendment, added to the U.S. Constitution after the Civil War, guarantees “equal protection of the laws” to every U.S. citizen, and opponents of Prop. 8 argue that allowing opposite-sex couples to marry while denying the right to same-sex couples violates this principle.

“I’ve learned not to try to predict what the court might do,” said SF State constitutional law professor Martin Carcieri, adding that at least four of the nine Supreme Court justices had to vote for hearing each case. Both those for and against same-sex marriage are trying to predict how the court’s swing vote, Justice Anthony Kennedy, will rule.

“Kennedy is the center of the universe on this issue,” Carcieri said. He added that majority opinions authored by Kennedy in two previous cases regarding the rights of same-sex couples show that the judge could likely vote that Prop. 8 is unconstitutional.

When a lower court, the 9th Circuit Court of Appeals, deemed Prop. 8 unconstitutional in August, the justices attempted to narrow the ruling so it would only apply to California and would leave the broader constitutionality of voter approved same-sex marriage bans in other states unanswered.

But the Supreme Court also agreed Dec. 7 to hear a separate case, U.S. v. Windsor, challenging the national Defense of Marriage Act’s prohibition of federal recognition of same-sex marriages. Section 3 of DOMA prevents same-sex couples who were legally married in states that allow the union from claiming federal benefits the government allows for opposite-sex married couples. Those benefits affect access to spouses in hospitals, federal tax deductions, shared benefits for the spouses of federal employees and immigration status in citizen/noncitizen marriages, to name just a few.

The Bipartisan Legal Advisory Group, in defense of DOMA, argued in Supreme Court filings that the court should grant review to one of several other challenges to the law defining marriage as an institution between one man and one woman. In response, Edith Windsor’s attorneys wrote that her case presented a poignant example of the harm DOMA does to same-sex couples, citing an estate tax levied against Windsor after she received an inheritance from her deceased spouse.

“There is no dispute that if Ms. Windsor had inherited the estate of her husband, she would not have had to pay a penny of estate tax, rather than $363,000,” attorneys for Windsor wrote.

Opponents of DOMA argue that it violates the 5th Amendment’s “due process clause” because the 14th Amendment does not apply to the federal government. However, the Supreme Court ruled in 1954 that the 5th Amendment’s guarantee of due process contained an implicit equal protection component.

Even though the numbers of the amendments are different, Carcieri said, the legal question in both cases is essentially the same: Does a state constitutional amendment banning same-sex marriage (Hollingsworth v. Perry) or a federal law reserving benefits for opposite-sex married couples (U.S. v. Windsor) violate constitutional guarantees of equality under the law?

Petitioners to the Supreme Court, defending Prop. 8, argue that the state has a rational basis in promoting opposite-sex marriage to protect “enduring, stable unions for the sake of responsibly producing and raising the next generation,” according to Supreme Court filings. The 9th Circuit Court of Appeals ruled in August that there was no legitimate state interest or rational basis for California to ban same-sex marriage, applying a traditional legal test for whether a law violates the equal protection clause of the 14th Amendment.

“It’s a human right,” Guzman said. “Sure, it affects some people and not others, but just like the civil rights movement, everybody should have the same rights. Everybody should try to pursue equality.”

Because both the state of California and President Barack Obama’s Department of Justice have declined to defend Prop. 8 and DOMA respectively, the court has asked that third-party petitioners in both cases to prepare arguments explaining why they have standing to defend the laws. Arguments in both cases could be heard as early as March, and decisions are expected summer 2013.

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Alex Emslie

Alex Emslie