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Prop 8 at Supreme Court: What To Expect
September 13, 2012
By Matt Baume
This is it. The moment of truth for Proposition 8.
In just a matter of days, the Supreme Court of the United States will meet to consider hearing AFER’s case against Prop 8. There are a number of different potential outcomes. So let’s take a minute to talk about what’s going to happen, and when.
First, a few basics. Prop 8 passed in 2008 by a narrow margin, changing the California state constitution and taking away the freedom to marry from committed gay and lesbian couples.
In response, AFER sued the state in federal court, pointing out that there is no rational basis for Prop 8, and that the law now denies Californians equal protection under the law.
And we won. Twice. First in District Court in 2010, and then at the Ninth Circuit Court of Appeals in 2012. Both courts agreed that Prop 8 violates the United States Constitution, and should be struck down. But even though we won, the law will remain in place until its proponents can exhaust their opportunities to be reheard.
And now they’re down to their last opportunity for that rehearing: the Supreme Court of the United States.
Here’s what happens next.
The Justices will meet on Monday, September 24th, to discuss all the cases before them. At that meeting, they’ll chose some of the cases that they’ll hear during their upcoming term, which will run from November to June of 2013. Other cases, they’ll decide not to hear.
If they decide to take our case, they’ll announce it in a list that’s released on Tuesday, September 25th. Then we’ll file briefs, have oral arguments, and get a decision from the court by next June.
If we’re not on that list, it means one of two things. Either they won’t hear our case, or they’re simply holding off on making a decision until later.
If they’ve rejected the petition to hear our case, then they’ll announce that on the following Monday, October 1st. In that case, our previous victory will be the final, decisive word. In other words, Prop 8 will be unconstitutional forever, and marriages can start back up again in California.
So there you have it. It’s taken a while to get here, but we’re finally approaching the end the case.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
38 Comments Leave a Comment
1.
Bob | September 13, 2012 at 12:09 pm
so exciting to have some action on prop8,,,,,,,,,,, let's go!!!!!!!!
2.
Mark | September 13, 2012 at 12:14 pm
There is a light at the end of the tunnel.
3.
Straight Ally #3008 | September 13, 2012 at 12:30 pm
And if you're NOM, it's an oncoming equality train.
4.
MightyAcorn | September 13, 2012 at 12:35 pm
Exciting in an o-god-I-don't-know-if-I-can-take-the-suspense kind of way.
5.
truthspew | September 13, 2012 at 12:52 pm
I wonder too, if in fact the USSC decides to hear this case and finds Prop 8 unconstitutional – what does this do to all the other gay marriage bans across the U.S. ?
6.
Sagesse | September 13, 2012 at 1:08 pm
@
7.
Bill S. | September 13, 2012 at 1:17 pm
It depends on the holding of their decision. If they uphold the 9th Circuit's decision as-is, then it still only applies to California. If they broaden their reasoning, it could strike down all marriage bans. But courts are only supposed to rule on the narrowest question possible. The Supreme Court would only rule on the broader question of all marriage equality bans if they find that the 9th Circuit's reasoning doesn't check out.
8.
Beth | September 13, 2012 at 6:20 pm
lol so no news is actually GOOD news this time around on the 25th. My..thats a change of pace from my usual "whats taking them so long" retoric.
9.
Beth V | September 13, 2012 at 6:25 pm
just a question here…matt says that perhaps they will withold a decision until "later". How later are we talking here? do all decisions regarding prop8 have to be in by a certain date?
10.
Stefan | September 13, 2012 at 6:27 pm
It would be only like another week or so.
11.
Guest | September 13, 2012 at 6:43 pm
They release orders on Mondays, so, Oct 1, or any Monday following.
12.
Marek | September 14, 2012 at 3:06 am
They could probably postpone the decision until the next conference? Then this would be a month or so later. I thought there is no obligation for SCOTUS to make ultimate decision on whether to hear the case on the conference to which the case is initially assigned.
The reason could be to decide whether to take up prop8 together with decision whether to hear doma cases. Strictly speaking they are not related, but still.
13.
jason walter | September 14, 2012 at 12:31 pm
<img src="http://storeshopnow.com/mm/imada/otot.jpg"/>Thank you Matt on the update. <img src="http://storeshopnow.com/mm/imada/toto2.jpg"/>
14.
Jeff slaton | September 15, 2012 at 9:11 am
I don't mean to start a fight, but I have a question. Assuming prop 8 gets throw out, how far will it apply?
Will it allow a threesome to marry each other? I am not saying that situation exists, nor am I trying to create controversy or start a fight, I am just honestly curious if it will then mean any honest, loving, committed relationship by 2 or more people will then be free to marry.
15.
guest | September 15, 2012 at 9:20 am
Equal protection is not an expansion of marriage to three or more.
16.
peewee | September 15, 2012 at 10:03 am
polygamy and bigamy is illegal in all 52 states.
17.
Lizard | September 15, 2012 at 11:02 am
While I don't have any particular moral objection to whatever arrangement consenting adults choose, multi-partner marriage is much more complex, legally. Making marriage legal between two adults regardless of gender requires minimal changes in existing laws, policies, procedures, etc, just as legalizing interracial marriage required few, if any, changes. Indeed, gay marriage is much less of a legal nightmare than "civil unions", because you just have one legal category to consider:"Married". On the other hand, adopting laws to deal with multi-partner marriage requires a whole new set of laws to deal with disputes, property, childcare, etc. If society changes to where multi-partner marriages, or the desire for same, represent a meaningful minority of the population (5%+), we might see a social movement to change the law, but in the short term, there's no demand for it and arguments against it that do not rely on issues of morality (which should not be the basis of law), but on practicality (which is *a* factor in making laws, but not the only one
18.
never_wore_zubaz | September 15, 2012 at 12:20 pm
You will be forced, by IRS agents, to f*ck a crate of puppies. I'm sorry but those are the ramifications.
*hopes you were trolling, because the alternative reflects mind-boggling ignorance*
19.
Triatomico | September 15, 2012 at 12:46 pm
It says nothing about polygamous marriages, to put it simply. The question is whether couples can be excluded from legal marriage because of their genders. Polygamous marriage would be a different type of marriage than is currently defined in the law. It does not invoke equal protection under the law.
20.
MightyAcorn | September 15, 2012 at 1:09 pm
What Lizard said. Despite the hater rhetoric, the definition of marriage–which is the legal creation of next-of-kin/family status between two people–will not change, only the parameters about what two people will be allowed to do so. Polygamy would require a completely different legal institution with complicated rules and, as Lizard points out, there's little call for it.
Bear in mind that part of why civil marriage registration persists and remains relevant in our society is to *clarify* certain legal rights, like who is entitled to inherit property or make health care decisions for another. Adding additional parties to a marriage would, from a legal standpoint, undo all the benefits of that singular next-of-kin status by making it as utterly disordered and confusing as when multiple parties aren't married at all.
For example: you're in a coma and didn't leave an advanced directive about your care. Your multiple spouses disagree about how you should be cared for (or maybe some think your care should be discontinued.) Whose decision has legal weight? Upon whom do the doctors and the courts rely? It's not clear.
Since keeping such disputes out of court is one of the reasons governments keep official marriage registration around, it's not in their interest to create a new kind of multi-party marriage that would just muddy the waters in this way (and further stress already straining court dockets.)
Hope that makes sense.
21.
Bill S. | September 16, 2012 at 6:12 am
In order to raise an equal protection claim, you must be **similarly situated** (legal term) to someone else who is being treated differently. Today, men and women are treated as equal partners in a marriage. If Pat and Sam are filing their income taxes, the IRS does not really need to know what shape genitals they have in order to process them. Same-sex and opposite-sex couples can therefore be argued to be similarly situated.
The same cannot be said for 3+ people polygamist groups. Every single marriage law in the country only works if there are only two people involved.
22.
jpmassar | September 16, 2012 at 10:29 am
53 states.
23.
Bob | September 16, 2012 at 11:35 am
Ted Olson,,, helping Romney campaign?????
http://www.washingtonblade.com/2012/09/15/pro-gay…
24.
Rafael | September 16, 2012 at 11:36 am
If Prop 8 is overturned for good…could a couple of gay foreigners get married in CA like any heterosexual foreign couple can? I know there is no residency requirement for marriage in CA.
25.
Mike in Baltimore | September 16, 2012 at 8:17 pm
The next SCOTUS conference after the September 24 conference is October 5; the one following is October 12.
Neither of those are 'a month or so later'.
26.
Bill S. | September 17, 2012 at 2:50 am
Yes. CA must treat homosexual couples equally to heterosexual couples, so all the same rules apply.
27.
F Young | September 17, 2012 at 4:42 am
Assuming Prop 8 falls on Oct 1, what are the plans for this website? Prop8trialtracker.com has been really useful, but its raison d'etre will be gone in that case.
On the other hand, it would be useful to have a similar site on the federal DOMA appeals, which I find very difficult to follow. Do you know of any plans along those lines?
28.
MightyAcorn | September 17, 2012 at 8:31 am
As long as they have valid ID (passports work) and any needed documentation for previous divorces/annulments/name changes, yes they can marry here. The question is whether their marriage will be recognized in their home country (or even by the US Feds, for tax or immigration purposes, sigh.)
I think we'll know much more about US federal recognition that after 1) this election and 2) this Supreme Court session.
29.
fiona64 | September 17, 2012 at 8:47 am
Anytime someone says something like "I'm not trying to start a fight, but …", you can just presume that starting a fight is *exactly* what they're trying to do. Why don't you ask whether someone can marry their dog or their lamp while you're at it? Go for the whole trifecta of stupid that we've seen here a million times.
Trolls. Feh.
30.
Mehere | September 17, 2012 at 8:58 am
I'll be damned if I can see how Prop 8 violates anything in the Constitution. The Constitution does not include any mention of marriage or homosexuality. That being the case, the Article that says all rights not embodied in the Constitution are reserved for the states comes into play. No rights are violated or denied by forbidding homo marriages. The idea that they are is a baldfaced lie told by homos who really are concerned about increasing the financial benefits they can get, and they realize that if they were honest about what they're after they would lose.
31.
Meg | September 17, 2012 at 10:48 am
As a marriage equality activist, I actually appreciate these types of questions being asked exactly in this way. It seemed pretty clear that Jeff Slaton was not trying to start a fight, but rather gain a better understanding of the parameters of Prop 8's being determined unconstitutional, and he got some excellent answers from his well-worded question.
32.
Meg | September 17, 2012 at 11:00 am
You're right, Mehere; there is nothing in the Constitution specifically related to marriage, be it between hetero- or homosexuals. The 9th amendment protects the rights that are not *specifically* enumerated in the Constitution, one of those being the right to marry. Prop 8 should be declared unconstitutional not because it violates something that already specifically exists in the Constitution, but because it completely goes against what the Constitution itself embodies and strives to protect. When you say that no rights are denied or violated by forbidding gays to marry, I think you are forgetting the three most basic rights that the United States and its Constitution are founded on, namely Life, Liberty, and the Pursuit of Happiness.
33.
Larry | September 17, 2012 at 11:04 am
Actually there is a lawsuit in Utah regarding polygamy. The family from the TV show Sister Wives is suing in federal court that Utah's laws banning polygamy are unconstitutional. Their argument is based heavily on Lawrence v Texas. The case hasn't been decided yet, and the judge could rule in a detailed decision against legalizing polygamy, but the issues aren't as far apart as some might think.
34.
David Henderson | September 17, 2012 at 12:27 pm
They are different in the sense that that they raise different constitutional questions. The main question in this case is, in its simplest form, can the state treat a man different from a woman with respect to whom they may marry? If we have a person named Chris who is eligible to marry, and a person named Tracy who is also eligible to marry, does the state have an interest in saying whether they can marry each other based on which gender each of them is?
With polygamy, the question is more along the lines of, does the state have an interest in preventing a married person from marrying again? And I would say that that limit is rationally based on legitimate state interests, such as having clearly-defined inheritance routes and having one person to make decisions for them in the event that the person is unable to make their own.
Now, there might be arguments that such a ban could be over- or under-inclusive, or may have to meet a higher standard than rational basis. But they would be different arguments from the ones used here.
35.
David Henderson | September 17, 2012 at 12:30 pm
Great! Maybe he can do some good getting his ideas across.
Imagine that as part of the mock debate, Olson brings up arguments in favor of same-sex couples getting married. Ryan may work on answers, but he may actually take those ideas to heart.
36.
Mike in Baltimore | September 17, 2012 at 9:51 pm
Besides the fact that the Federal Constitution says NOTHING at all about marriage, heterosexual or homosexual, Prop H8 and DOMA both violate the right of people to marry the person they love.
My partner of more than 20 years died of cancer several years ago. My mother watched as my partner's 80-some year old mother signed some of the same type of documents my mother signed after less than five years of marriage to my father, and less than five months of marriage to my first step-father.
The reason my partner's mother signed the documents? I couldn't marry my partner, thus become the next of kin to sign the documents.
And that is 'increased financial benefits' you claim?
I was an employee of the Federal government prior to my retirement. Because of DOMA, I couldn't put my partner on my insurance policy when we were under the belief that he had no medical insurance coverage. Doing so would have INCREASED my premium quite significantly, but I still wanted to put him on that insurance policy.
I was willing to pay MORE, but you state the ONLY thing the GLBT community is interested in is 'more financial benefits'?
Oh, and my partner had no estate, so I gained nothing in his death (the house was totally in my name, and the mortgage fully paid off, and my partner didn't believe in 'life' insurance, so no policy pay off when he died.)
But you were saying that the GLBT community is ONLY interested in 'more financial benefits'.
Hint, 'mehere' – life can sometimes be a very complicated situation, and not everyone has the same goals and ideals of others. Some are ONLY concerned with money, money, money, but that is NOT the concern of many. In fact, I would say that the majority of the GLBT community is NOT concerned with money, money, money.
If you are concerned with money, money, money, however, I'm sure you can't understand why many are not, but instead are supportive of getting rid of racism and bigotry from America, even if it means a bit less monetary reward over the short haul (but probably a greater reward over the long haul).
37.
fiona64 | September 19, 2012 at 2:42 pm
And, as a marriage equality activist, I guess I am sick and tired of seeing the same stupid rhetoric raised every time we all turn around for more than a decade. Maybe you aren't tired of hearing "but what about threesomes/my dog/my lamp," but I sure as hell am. It's setting up a strawman … and the questioner is *fully* aware of that.
38.
fiona64 | September 19, 2012 at 2:43 pm
Look under Amendments 9 and 14.
You're welcome. Love, a *straight* woman who understands *exactly* what the Constitution means.
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