The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s. Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples. Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage. A few months later, Boies and Olson filed a lawsuit challenging the ban on behalf of two same-sex couples who wanted to get married. (My earlier “Plain English” posts on the case are available here, here, here, and here.)Pretty straightforward review. More at that top link.
The sponsors of Proposition 8 defended it in court, because the State of California refused. The two couples prevailed in the federal trial court and then in the U.S. Court of Appeals for the Ninth Circuit, with the latter holding that Proposition 8 was unconstitutional because it took the previously granted right to marry away from gays and lesbians just because people didn’t like them.
There is a threshold question of “standing” that piqued the interest of several Justices – the Chief Justice and the Court’s four more liberal Justices in particular – who seemed inclined at oral argument to hold that the sponsors of Proposition 8 lacked the legal right to defend it in court. Justice Kennedy, who had recently suggested that the Court was deciding too many hot-button issues that should be decided by the legislature instead, seemed skeptical about a potential problem with the sponsors’ “standing” but offered another path to avoid deciding whether Proposition 8 violates the Constitution: the Court could simply dismiss the case on the ground that it had made a mistake in taking it on.
PREVIOUSLY: "The Supreme Court's Blockbuster Week Ahead."