Gay marriage supporters nervous over Supreme Court’s Prop. 8 move

Liz Goodwin
The Lookout

On Friday, the Supreme Court announced it will decide two cases about gay marriage, marking the first time it will consider the issue. One of those cases, concerning California's 2008 gay marriage ban, has some gay rights supporters very nervous.

California's Proposition 8 outlawed gay marriage a few months after California's Supreme Court ruled that it must be allowed. Two federal courts have decided that the ban is unconstitutional because it discriminates against a group of people without providing a good enough reason to do so. Many court watchers thought the Supreme Court would pass on the case, called Perry v. Brown, because it was an easy way to avoid wading into a controversial, complicated and fast-changing issue. (Only 10 years ago, gay marriage was illegal in all 50 states; today, 9 states and the District of Columbia allow it, and public opinion has begun to tip in favor of it.)

The justices could have let the lower court's decision to strike down Proposition 8 stand, which would have applied only in California. Gay couples would have been able to wed within the month. Now, gay rights supporters in the state are in limbo.

"I think any time our gay issues go to the U.S. Supreme Court, we are all filled with anxiety because you never know," Los Angeles City Councilman and gay rights activist John Duran told the LA Times. "We have a lot of anxiety because we realize whatever decision they make, if it's adverse, we have to live with it for a generation."

By taking the case, some liberals worry, the court is planning to "split the baby" on the gay marriage issue, effectively turning same-sex marriage over to the states. Under this scenario, the Supreme Court would rule in the Defense of Marriage Act case—the other one it will be deciding—that the federal government must recognize gay marriages in states where it's allowed, but decide in the Proposition 8 case that states are still free to ban the practice.

"I think there should be more nervousness than enthusiasm on the gay rights side for the Perry case," said Doug NeJaime, assistant professor at Loyola Law School.

The Defense of Marriage Act case is seen as a potential slam dunk because it argues that the federal government should butt out of states' definitions of marriage and recognize same-sex married couples who live in the nine states that allow it. That's a pro-10th Amendment argument that could attract one or more of the court's five conservatives.

But the Proposition 8 case is far more controversial; its lead attorneys are arguing that all Americans, regardless of sexual orientation, should have a fundamental right to marry their chosen partners. E.J. Graff, writing in the gay and lesbian news magazine The Advocate, summed it up this way in September: "If the court does take up Perry, be afraid, be very afraid." She continues:

Almost no one believes the Supreme Court is ready to get out ahead of American opinion on the question at Perry's heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution? Maybe the Supremes would be ready to say this in 10 years, after LGBT forces have repealed most of the state [bans], replacing them with marriage equality in all but a handful of Southern states. But not yet.

In The New York Times on Monday, Adam Liptak theorized that the four most conservative justices may have been the ones who pushed to take up Perry, because they want to uphold Proposition 8. "They may have calculated that they had a shot at capturing the decisive vote of the member of the court at its ideological center, Justice Anthony M. Kennedy, at least in the California case," he writes. Though Kennedy, the court's swing vote, has written pro-gay rights decisions in the past, legal scholars have no idea whether he would vote to strike down state gay marriage bans all over the country.

Erwin Chemerinsky, founding dean of the UC Irvine School of Law, says that until June, when the justices will issue their decisions, all predictions are just guesswork. "It's just reading tea leaves," he said. "It's impossible to guess."