By Scott Shafer
It's been more than four years since voters passed Proposition 8, banning gay and lesbian marriage in California. After two lower court rulings striking down the measure, the question of Prop. 8 finally made it to the U.S. Supreme Court Friday.
Berkeley resident Kris Perry and her partner Sandy Stier were one of the two couples who sued to overturn Prop. 8. At a conference behind closed doors Friday, the Supreme Court justices discussed Prop. 8 and whether to "grant cert" to the case, in other words, review it, or let the lower court decisions stand.
"We feel relieved to finally have it reaching this final stage," says Perry.
Kris Perry, along with the other plaintiffs in Los Angeles, are carefully watching the outcome of the court's deliberation.
"This is a legacy decision, Perry says. "This is setting the direction for a country that prides itself on equal access and equal opportunity that all men are created equal."
For supporters of Prop. 8, the last four years have not been kind. They've lost rounds in the federal district court and the Ninth Circuit Court of Appeals in California and seen public opinion shift toward more acceptance of gay marriage. Since Prop. 8 passed, eight states and the District of Columbia have legalized same-sex marriage. But Yes on 8 attorney Andrew Pugno doesn't think much has changed.
"There are a handful of states that are very liberal, that have in most cases, embraced same-sex marriage because they were forced to by the courts," he says.
And he doubts the U.S. Supreme Court is ready to declare that marriage is a fundamental right for all couples, regardless of gender.
"Nothing in that indicates that the court is ready to make the huge leap to actually positively requiring government to endorse and to hold up as ideal same-sex relationships as marriage," Pugno says.
Andy Pugno adds that the whole point of the Yes on 8 legal team is that same sex marriage is a state issue, not a federal one.
"If an individual state wants to experiment with same-sex marriage they should be allowed to through their democratic process and not have it forced on them by the courts," he says.
In addition to the Prop. 8 case, the Supreme Court is also considering several cases involving the Defense of Marriage Act or DOMA. Passed by Congress in 1996, DOMA prevents the federal government from recognizing same sex marriages conducted in states where it's legal.
Several lower courts have struck down DOMA and most legal observers expect the court will take up at least one of the DOMA cases, one of which is in California.
It takes the votes of four justices to review a case. So how will they evaluate the DOMA and Prop. 8 issues?
"The two most important factors the court looks at are how important is this issue and how much confusion or variance in the way lower courts are dealing with this issue, "says said UC Davis law professor Vik Amar. "It's going to grant review if it thinks those factors counsel in favor of review even if it thinks the lower court got the result right."
Amar says the DOMA and Prop. 8 cases present very different legal questions.
"In the DOMA cases, the plaintiffs, the same-sex couples, are not arguing that there is an affirmative constitutional right to get married they're just saying that if the state that I live in accepts it, then the federal government, you should accept it for the purpose of federal benefits as well," says Amar.
For that reason, Amar says DOMA presents a narrower question and striking it down would not address any state bans on same sex marriage.
Attorney Ted Boutrous, part of the legal team challenging Prop. 8, feels confident his side wins no matter what the Supreme Court does.
"We have mixed emotions but they're generally very very positive emotions it's been a long road and it's time for marriage equality to be back in California, " says Boutrous.
The court's decision on whether to review the Prop. 8 case will likely come Monday. If review is granted oral arguments will be scheduled early next year, with a final decision coming by the end of June.
If it's denied and the lower court ruling stands, same sex marriages could resume as early as next week in California.
