Supreme Court Gay Marriage: Could the Court Pass the Buck On Prop 8?


Proposition 8, the gay marriage ban in California that is now sitting in the Supreme Court, has briefly fallen out of the news headlines lately. However, let’s not forget that this is one of the biggest civil-rights cases of our time, one that will undoubtedly change the course of history. A Supreme Court decision striking down Prop 8 would essentially put the weight of the Constitution behind gay marriage.

Gay marriage is not constitutionally protected. Right now, it is legal in 12 states, with Rhode Island, Minnesota, and Delaware all having legalized gay marriage this past May. The Supreme Court case could set the precedent to make gay marriage legal across the country by overturning Prop 8, a huge step for gay-marriage advocates. However, if the Supreme Court upholds Prop 8, it could set the battle for gay marriage back by 25 years. With 30 states that have gay marriage bans in their constitutions, even the strong political movements that exist will have a tough time overturning them. If Prop 8 were upheld, states would remain free to exclude gay and lesbian couples from marriage.

Voters in California passed Proposition 8 in November 2008, six months after a state Supreme Court ruling allowed same sex marriage. The amendment to the state constitution effectively outlawed gay marriages, although any that had already taken place remained legal. Supporters of Prop 8 say that the Supreme Court of the United States should not be involved in striking down a law passed by the voters.

A technicality in the case could cause the court to dismiss the Prop 8 case with no ruling, however. The justices could decide that the sponsors of the ballot measure outlawing same-sex marriage had no legal right, or standing, to defend it in federal court, ending the fight in D.C. and taking it back to California. So far the justices seem split on the issue, and Justice Kennedy has suggested that the court rule on California only instead of a broad ruling that could legalize gay marriage in all 50 states. Indeed, the justices have indicated on several occasions that they were wary of ruling broadly.

The Supreme Court is expected to rule on Prop 8 by the end of June. The justices could rule that Prop 8 and all bans on gay marriages are unconstitutional, and gay couples would be able to get married in all 50 states. The justices could make a ruling applicable only to California, or could dismiss the case altogether. Dismissing the appeal would also have the effect of voiding Prop 8, allowing gay marriages to resume in California. There are several paths that could be taken, and one thing is for sure — whichever is, the impact will be immediate and revolutionary.

For a transcript of the oral arguments before the justices, click here.