Supreme Court Allows Gay Marriage To Resume in California

Posted June 26, 2013 in Gay and Lesbian issues by

The U.S. Supreme Court today sent back a challenge to California’s gay marriage ban for lack of standing, which will most likely bring full marriage equality to the state.

Because state officials declined to defend the law, the court reasoned in a 5-4 decision, the parties who challenged a district court ruling that threw out the ban had no right to bring an appeal.

“We have never before upheld the standing of a private party to defend constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here,” Chief Justice John Roberts wrote in the majority opinion in Hollingsworth v. Perry. “We have no authority to decide this case on the merits, and neither did the 9th Circuit.”

The ruling could have declared same sex marriage bans unconstitutional altogether, but instead the court decided to leave matters in the hands of the states. Including California, LGBT marriage is available in 13 states, with Minnesota, Rhode Island and Delaware all joining the club in May.


Permanent Injunction

The California Supreme Court had thrown out the state’s gay marriage ban in 2008, and couples had a brief window to tie the knot before Proposition 8 passed via ballot initiative that November, codifying the ban in the state’s constitution. However, Prop 8 was overturned by a federal court, so with the Supreme Court declining to weigh in the ultimate result is most likely marriage for all, regardless of the sex of the participants.

Kimberly D. Richman

California Governor Jerry Brown ordered county clerks to start issuing marriage licenses to same sex couples shortly after today’s decision was released. “After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California,” the governor said.

It is still possible that equality opponents could argue that the ruling should only apply to the couples who were married before Prop 8 passed, but their odds of success are low.

“There’s a slim chance, because the context here is the Supreme Court has remanded to lower court,” says Kimberly D. Richman, an associate professor of sociology and legal studies at the University of San Francisco. “But I can’t imagine that a judge will not defer to the existing decision that literally puts a permanent injunction on Proposition 8 as a whole.”


Precedent or Not

District Judge Vaughn Walker originally issued a sweeping opinion, stating that anti-gay laws should be subjected to the highest form of legal scrutiny due to a history of discrimination. Today’s Supreme Court ruling doesn’t necessarily mean that determination must be followed by other courts.

“I don’t think that’s precedent,” says Richman. “The rationale won’t necessarily stand up as law but the effect will stand up as law.”

What should be precedential is the high court’s decision that private parties have no right to bring appeals against lower court decisions on state marriage laws. “What this is communicating to other states and what might be the smart strategy for advocates is to lobby governors and legislators to not defend the laws when challenged,” Richman says.


Dissent on the Bench

Justice Anthony Kennedy, joined by an unusual lineup of Justices Clarence Thomas, Samuel Alito and Sonya Sotomayor, dissented. “Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so,” Kennedy’s dissent reads, claiming the court should have issued its own decision on the merits of the case, without weighing on on what that decision should have been.

“The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around,” Kennedy writes. “The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.”

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